lawyers Archives - Page 7 of 9 - The National Law Forum

How Marketers Can Better Support Inclusion for Women Lawyers of Color — Today

A new in-depth report from the American Bar Association, Left Out and Left Behind: The Hurdles, Hassles and Heartaches of Achieving Long-Term Legal Careers for Women of Color, draws on data and interviews to tell the story of what life is like for women lawyers of color. The report, authored by social scientist Destiny Peery, past ABA president Paulette Brown and Chicago attorney Eileen Letts, demonstrates why, despite increased efforts by firms and the profession generally, to improve diversity and inclusion, women of color continue to face barriers to advancement and are much more likely than white women counterparts to leave the profession.

This report is essential reading for any law leader who is serious about making true substantive changes that will improve the retention and advancement of women of color — particularly those leaders whose firms are posting “Black Lives Matter” messages in internal communications and on social media channels. Becoming an antiracist law firm does not end with a slogan or “messaging” — it requires an honest examination of formal and informal policies and practices, and a reckoning with the impact of those policies on lawyers of color. Then it’s time to reimagine how your firm runs to make sure opportunities are fairly distributed.

While it’s very important to hear and sit with the stories individual lawyers share from their experience of implicit and explicit bias, if I know my audience of driven, task-oriented marketers and communicators, you will be skipping to the end, where the report recommends next steps for firms that want to take action. Below I outline those general recommendations, and then consider the role of the marketing department in helping to make them a reality.

Adopt Best Practices for Reducing Biases in Decision-Making. “[P]revious research that has shown that high levels of subjectivity in promotion standards, selection for assignments, compensation decisions, and performance appraisals are often colored by stereotypes and serve as institutional and structural barriers to the advancement of women of color and other underrepresented attorneys.”

What Marketers Can Do: How does your department determine which partners receive marketing and communications support as they work to build their business? Is there a way to distribute those resources — help with individual lawyers’ social media channels, assistance writing and placing thought leadership, nominations for awards and key boards of directors — more fairly to elevate your firm’s diverse attorneys? How can you help advise up-and-coming partners on which opportunities will be the best use of their limited time and make the biggest impact on their business development?

Improve Access to Effective, Engaged Mentors and Sponsors. “[W]omen of color are especially likely to report that they lack access to mentors or sponsors who are well-connected and have power and influence to both clue them into important dynamics of the workplace and effectively advocate for them.”

What Marketers Can Do: Marketers have a great opportunity to help create mentorship and sponsorship relationships through the business development and proposal-writing process. By now, most rainmakers and practice leaders understand that business clients demand to be served by diverse teams. So they’re being thoughtful about including diverse attorneys in pitch decks and other materials. You can help move that inclusion to the next level by adding a follow-up communication step to your BD process in which all named/pictured team members de-brief and offer feedback. This is a simple way to build a platform upon which younger and diverse attorneys can demonstrate their value in front of the senior partners who can shape their career opportunities. In addition, you can use channels like the internal firm newsletter to educate more senior partners on how to effectively advocate for diverse attorneys — and, in doing so, help the firm stand out as a leader on an issue that matters very much to clients.

Take an Intersectional Approach to Addressing Diversity and Gender. “[B]lindness to or ignorance of the ways that gender and race (as well as other social identities) can interact to create distinct experiences” has so far limited what firms have been able to achieve. Firms must acknowledge that, while they are still disadvantaged, white women’s careers develop differently because of their access to privilege. They navigate networking differently, are viewed differently by colleagues, clients, and judges, and receive distinct treatment when it comes to work distribution and performance evaluation.

What Marketers Can Do: Take a look at how you use words like “diversity,” “equity,” and “inclusion” in internal and external firm communications. Do you grapple with intersectionality — that is, the way that experiences of race and gender (and class and sexuality and ability) intersect for your attorneys — in your messaging? Are there ways that your “diversity” initiatives and communications erase the experience of women who are not white? How could you make changes to address this issue?

“[O]ur participants mentioned again and again the myriad ways that the culture of the legal profession interfered with their abilities to succeed, to feel valued, and sometimes to persist in the legal profession.”

What Marketers Can Do. So much! 1) Take a look at your firm’s (pre-Covid, in-person) events. Where are they typically held? Do you always choose locations and activities that are most comfortable for wealthy white men? How might you change things up? 2) Does your firm have a written editorial style guide? If so, does it include a section on inclusive language so that everyone knows how to use language in the most inclusive ways possible? 3) If your intended audience for your internal firm communications is “everyone,” are you sure your language and framing actually accomplish that goal, or are you unintentionally treating a white reader as the default? 4) What other unexamined policies, practices, habits and conventions may implicitly communicate to diverse partners that they don’t fully belong? Learning how to spot potential for “othering” and exclusion in communications and other marketing activities is an important skill your department needs to teach its junior members and encourage them to practice.

True change that makes law firms into more equitable and inclusive workplaces for all lawyers must happen on both the systemic and individual levels. While many of the most sweeping and necessary changes are out of the hands of junior and senior legal marketers, there are plenty of things we can do within the scope of our influence that will make a difference. And the time to start is now.

ARTICLE BY Debra Pickett at Page 2 Communications.

For more on diversity in law firms, see the National Law Review Law Office Management section.

IMS Insights Episode 11: COVID-19 Analysts Briefing on Litigation Impacts

To better understand how the COVID-19 pandemic is impacting the commercial litigation community, IMS ExpertServices conducted analysis and gathered input during the first half of April from more than 400 attorneys, in-house counsel, experts, and stakeholders throughout the commercial litigation community.

In this special podcast feature, you’ll hear commentary from the April 30 Analysts Briefing hosted by IMS on the study’s top findings and other key trends for commercial litigators, with discussion from a panel of thought leaders including:·

· James Crane, Chief Revenue Officer at IMS ExpertServices

· Rudhir Krishtel, Certified Co-Active Coach and Facilitator with Krishtel Coaching, Former Senior Patent Counsel at Apple, Former Partner at Fish & Richardson, and IMS Thought Leader and Contributor

· Nate Robson, Litigation Editor at The American Lawyer

· Eilene Spear, Operations and Project Manager at The National Law Review

· Ty Sagalow, Commercial insurance expert and IMS thought leader and contributor

ARTICLE BY James Crane at IMS ExpertServices.

For more on COVID-19 litigation, see the National Law Review Coronavirus News section.

3 Cyberattacks and 3 Practical Measures Lawyers Can Take to Protect Themselves

Hackers are targeting lawyers with cyberattacks, and coronavirus is making things worse. With the recent Covid-19 pandemic and the resultant remote work, hackers are exploiting lawyers with even greater intensity. The ABA Journal recently reported that “scams multiply during the COVID crisis.”

The Top 3 Cyber Attacks Targeting Law Firms

You’re probably displaced from your usual working space and feeling out of whack. That sets the stage for hackers to advantage of the confusion — and your home computer setup. You need to know the traits of the most common cyberthreats so you can identify a scam.

1. Phishing Email Scams

Hackers send phishing emails that impersonate a legit sender and fool the recipient into giving up information. Most phishing scams trick their victims into clicking on malicious URLs. These phishing links redirect the victim to fake sites — most commonly, the spoofed login pages to Office 365 and online baking — and capture their username and password. Now that the hacker has these credentials, they can legitimately access confidential data or withdraw funds.

In 2018, nearly 80% of law firms experienced phishing attacks, according to security research firm Osterman Research. As COVID-19 increases anxiety and the amount of emails in your inbox, hackers have taken advantage. In mid-March 2020, right as COVID-19 ramped up in the United States, hackers purported to be the World Health Organization (WHO). The phishing email asked the victim to open an attachment containing official information on protecting yourself from the coronavirus. Little did they know that opening this attachment downloaded a keystroke logger that records what’s being typed. Keystroke logging is typically used to capture even more login credentials so the hacker can access as many sites and services as possible.

For further details, learn how viral coronavirus scams are attacking computers and smartphones.

2. Ransomware

Ransomeware is one of four of the biggest cybersecurity risks law firms face according to Law Technology Today. This cyberattack is a type of malware that, once installed, denies access to a computer system or data. Typically, email attachments, “malvertising”, or drive-by downloads install ransomware onto devices. To regain access to the compromised device, the victim must wire funds to the hacker. Even if the ransom is paid, it’s not guaranteed that the hackers will restore system access.

3. Data Breaches

Data breaches result in the loss of confidential data or the unauthorized access of that data. They occur after hackers execute a successful phishing or ransomware attack, which are common entry point of a data breach. The loss of this data could have devastating consequences on a law firm. If clients feel that their privacy was violated in the breach, they might sue.

3 Practical Cyberthreat Solutions Law Firms

Law firms can take several practical measures to protect their systems and data. Safeguarding identity and access, encrypting data, and investing in cybersecurity software (if possible) for anti-phishing and anti-malware will lower the risk of a successful cyberattack.

1. Encrypt Data

Lawyers rely on email and document sharing to run their firm. As these documents and communications travel across the internet, they can be intercepted. But when data is encrypted, it is substantially harder for a hacker to intercept. A VPN (Virtual Private Network) encrypts data in a cost-effective, non-intrusive, and reliable way. Creating a secure “tunnel” between your computer and the internet, VPNs protect data using 256-bit encryption. This protocol is so secure that banks and the U.S. government use it to protect classified data.

2. Use Two-Factor Authentication (2FA)

If you’re in the 50% of people who use the same passwords for personal and work accounts, then take note. Weak and reused passwords increase your chances of experiencing a cyberattack. 2FA adds protection to your username and password, making it much harder to compromise your credentials. Think of 2FA as a dynamic, time-sensitive, secondary password.

2FA uses a password alongside a second one-time passcode that is sent to the employee’s device. Unless this code is submitted on the follow-up login screen in a timely manner, it will expire. If codes are not used, then biometric authentication such as a retina or fingerprint scan provide the second factor.

3. Investing in Intelligent IT systems

When dealing with high volumes of very confidential data, you can never be too confident of your online security. The odds are not in your favor: one in four organizations in the US will be breached. And recovering from a breach is pricy. Law firms lose, on average, $4.62 million dollars every data breach. If you worry about the expense of cybersecurity solutions, remember that other number.

You can spend money on anti-phishing, anti-malware, and data loss prevention tools. Or you can not spend the money and risk having to pay a ransom, deal with legal fees, reputational damage, and more. Although it’s a tough pill to swallow in the current economic landscape, preventative security is cheaper than dealing with a breach.

If you cannot afford a cybersecurity system at this time, just update your software whenever you receive a notification. This is the easiest and quickest way to secure your systems. Software updates come with security fixes that will patch any vulnerabilities in your system. Hackers are known to exploit old/known vulnerabilities. Take the time to vet your network or cloud service providers to see what precautions they have to protect your firm from cybercriminals.

You Must Anticipate Cyberattacks on Your Firm

Law firms possess sensitive data that hackers would love to leverage. Using intelligent IT systems, updating software, encrypting data, and setting up two-factor authentication are the most effective ways that lawyers can protect their data while working remotely during the COVID-19 lockdown.

ARTICLE BY PracticePanther.

For more legal tech considerations, see the National Law Review Law Office Management section.

IMS Insights Podcast: Episode 9- Rudhir Krishtel On Mindfulness And Wellness For Attorneys Amid COVID-19

In this episode, Rudhir Krishtel joins us to share guidance on mindfulness and wellness for attorneys. He also provides tips and strategies to help with adjustments for those balancing the intense demands of a legal career during the uncertainties of the COVID-19 pandemic.

In his lawyer days, Rudhir practiced law for fifteen years as a federal clerk, patent litigation partner at Fish & Richardson, and later as senior patent counsel at Apple.

Today, he is a certified Co-Active Coach and facilitator, focusing on workplace wellness and intensity for law firms and attorneys. Many lawyers struggle with stress and lack of purpose in their practice. As a former lawyer, Rudhir coaches clients and hosts workshops to identify the issues that hold lawyers back from advancing in their career with clarity and fulfillment.

His work during his lawyer days led Rudhir to train as a yoga teacher through the Baptiste Institute and on mindfulness meditation through Warrior One. He also a Professional Certified Coach through the Coaches Training Institute & International Coaching Federation, and uses this training along with his experience as a practitioner to deliver much-needed support for the legal community. Details on Rudhir’s consulting and mindfulness workshops for attorneys can be found at www.krishtel.com.

Transcript

Teresa Barber: Rudhir, hello, thank you. I really appreciate you joining us today. Could you tell me just a little bit for our listeners… Tell us a little bit about your background as an attorney and a little bit about your consulting practice.

Rudhir Krishtel: Yeah, Teresa, thank you so much, and thanks IMS for having me here. I was practicing law for 15 years. I started at my practice as a federal clerk. I was ultimately a partner at Fish & Richardson in their patent litigation team in the DC office. Then for the last five years of my practice, I was senior in-house counsel at Apple out here in the Bay area where I moved to seven, eight years ago.

Rudhir: After 15 years of practice, I started to notice… What I started to see were cycles of behavior in the practice over 15 years, just ways that we all behave at work that I felt like were somewhat compromising to our practice. I started to notice that we accept that stress is a part, a natural part, of our work life. We wouldn’t get paid as lawyers at the rates that we charge, and we wouldn’t be able to do the work that we do if it wasn’t something that was challenging or stressful, so I totally understood that.

Rudhir: But there’s this interesting relationship where work caused stress, but then stress actually started to impact the quality of our relationships and ultimately the work product. It is this weird cycle where work causes stress but then stress impacts the work. I think everyone just accepted that as the norm, and I felt like this was a dialogue that we needed to have and a cycle in the system that we needed to improve.

Rudhir: It’s when I decided to leave the practice. Three years back I left the practice. I retrained first as a mindfulness instructor and yoga instructor. And not wanting lawyers on their yoga mats all the time, I ultimately trained as an executive coach. Now, I coach attorneys. I have a coaching business that’s Krishtel Coaching. I coach attorneys in their practice one on one, and we identify some of the most challenging aspects of your practice and try to move them out of the way so that attorneys have a more fulfilling practice. I also host workshops. I visit law firms and legal departments and host dialogue on ways that we can start shifting our culture, build a greater resilience, incorporate emotional intelligence and mindfulness practices. I also host online coaching programs and webinars on these topics.

Rudhir: The consulting and the coaching practice has evolved over the last many years. I’ve now coached over 100 attorneys, managing partners at law firms, general counsel at companies, a wide range of attorneys on really how they can be better for themselves and others in their practice and really trying to shift and improve our culture in the legal workplace.

Teresa: Rudhir, it sounds like you identified the need while you were in the boiling pan yourself and didn’t really see anyone meeting those needs. As you’ve worked now for a number of years with clients, especially at big law firms and at corporations in house, what have you seen as the return on it? It sounds like you also had a theory that if we start to apply this, it’s not only going to improve quality of life and wellness and balance, but will also impact work product. I would be interested in some antidotes from clients you’ve worked with so far.

Rudhir: Teresa, what you said first is what I want to tap into a little bit, which is what I did notice during my time at Apple. You make this switch from a partner in law firm to go in house, and we think about it as sort of this greener pasture switch, attorneys going in house. What I notice is I got more senior in the practice. With every level up, growing of the team, salary bump, promotion, whatever it was, every time the further I got up, the lonelier I felt.

Rudhir: It’s very interesting that here we are achieving this so-called dream, and yet I felt somewhat more isolated, and I’m a pretty social person. I’m the person at Fish that was head of recruiting for our office. I’m definitely the person that planned all of the March Madness pools and getting everybody back together outside of work. I’m that person. For me to feel somewhat isolated was really fascinating, to be naturally connected and connecting and yet feel lonely at the same time was a very odd experience.

Rudhir: But I felt it more and more as I got more senior. I started to realize, “Well, if I’m experiencing this, how many other people are experiencing this?” There’s this unique thing that happens in legal practices that we are shrouded in confidentiality and in adversity in this adversarial experience. There’s a lack of trust that we have oftentimes with our colleagues. The thing that’s most challenging for me at work, I’m not sure I’d be comfortable talking to my colleagues about, whether it be a difficulty with a technical issue or a difficulty with building business or a challenge with how I’m managing my team. Sometimes we’re not comfortable being necessarily open about that with our colleagues just because of the legal work environment.

Rudhir: I started to notice this, and I realized I’m so senior in this practice I wish I had my own set of advisors. I’m at this point where I’m generating enough revenue. I’m generating enough revenue for myself that small businesses generate. We’re in the hundreds of thousands now. Some lawyers are in the low seven figures in terms of their business generation and their income. Yet, I don’t know who my closest advisors necessarily are that I just deeply trust.

Teresa: Right.

Rudhir: I started realizing, “Well, if I’m having that issue, there must be other attorneys that are having this issue.” And it becomes even that much more compounded with intersectionality. Now we’re talking about women that might be having these challenges, attorneys of color that might be having these challenges, really everybody. When I started to notice this, I thought, “Here’s a space that I feel like we need someone to step into.” That’s the decision that I made. It’s very interesting. I work with a wide range of clients, and to sort of address your second question, the second part of your question, is it’s just been deeply valuable this work for the clients that I’ve worked with, and it shows up in many ways.

Rudhir: People don’t often think about connecting with… Well, let me say that differently, Teresa. When we have somebody in our corner that is willing to champion us, that is willing to hear us out, that is willing to co-strategize with us, that is sort of a peer in the practice and that has real confidentiality, so much is possible. I’ve sort of seen that with my clients. I’ve seen a lot of growth and evolution on people having much better relationships with their teams, managing their groups in healthier ways, finding ways to solve problems with some of the challenges they face in their teams, interacting with people in a healthier way, becoming that much more adapt at generating business and for people that are looking for some sort of a transition and feeling stuck really having place where they can start to dialogue and strategize and brainstorm on that, and we come up with just incredible directional shifts for people in their life and their business. This practice I feel like has been a huge benefit to the clients that I work with.

Teresa: You touched on something that was interesting to you a minute ago, Rudhir. You were talking about this feeling of isolation, social isolation. We’re talking today and it’s later in March 2020. Back on December 31, 2019, the World Health Organization first identified an epidemic in China. Today, we’re looking at shelter in place orders not only around the San Francisco Bay area but throughout that entire state possibly with more coming in other markets and many people now working in a brand new environment, work from home environment where those lines between family and work are blurred a little bit.

Teresa: Looking at the 2019 novel Coronavirus pandemic, this is unprecedented territory, with you and your work with clients, what are you seeing right now?

Rudhir: It’s very interesting because I tend to think that lawyers as I mentioned despite us working with each other and connecting tend to have somewhat more of a natural isolation and loneliness already. This is just me saying this. There have actually been studies. The ABA has put out studies. There are psychologists that have put out studies that identify and indicate that lawyers have less sort of a lower social tendency than others than most.

Rudhir: And so at a time when we’re now even doubling down on the isolation, I’ve seen a lot of challenge. I see lawyers that are expressing concerns over a lot of things. Here we have a group of people that are natural problem solvers, lawyers are natural problem solvers. We are always thinking ahead. As we think ahead, we’re thinking ahead to how long is this going to last. There’s an uncertainty.

Teresa: Right.

Rudhir: We’re thinking to how is this going to impact my business? For in-house attorneys the business that they’re in and corporation that they’re in, but for outside counsel attorneys, how is this affecting my business development and business generation? What does this mean for my income? What does this mean for my team? What might this mean for the health of my family and the people around me? What might this mean for others? There’s just a lot of concern layered on top of a business and a practice that already has us sort of in a position where we’re “constantly putting out fires.”

Rudhir: I think that what I’m seeing is a higher level of anxiety in some than what might usually be the case. I think when anxiety comes up, we are not at our best self. We are not behaving in a way that is sort of rooted in our best self. We’re being reactive. We are thinking about we’re in sort of a flight or fight mode. We’re thinking about ways that we can run and save things or we’re thinking about ways that we can sort of fix things right away. I think there’s a deep discomfort that’s happening in this moment.

Teresa: With the questions that you’re seeing from clients right now, I know you’ve set up a webinar right now. You’re providing some guidance to people who are looking for it. What can people do right now? With the sense of what do I have control over, there is so much certainty. What are you telling people right now?

Rudhir: Yeah. I set up a free webinar Wednesdays mornings at 9:00 a.m. Pacific, noon Eastern on mindfulness tools for managing uncertainty. I find that mindfulness practices, resilience practices, emotional intelligence practices are very much relevant in this time. I think that even just paying attention to the news has me at a slightly higher level of anxiety. I’m waking up a bit more tired than usual this week. It’s just very interesting. Not much has changed because we work from home my wife and I, and so for us to practice social distancing and kind of put a barrier around our house is actually not too different than what we’re usually doing.

Teresa: Right.

Rudhir: I’m slightly more on edge and slightly more tired. These practices of mindfulness and resilience and emotional intelligence, I think, are just really valuable in this moment. I’ve started to offer them out on a weekly webinar, just simple tools. For example, you asked what might be something that we can do. Lawyers, we tend to be very head heavy. I didn’t even understand what that meant a few years ago because I didn’t know what the difference was between that and anything else.

Rudhir: We tend to be thinking people. We’re valued for our knowledge. People want us for our advice, and we want to offer our advice. We’re problem solving. We always respect and value the attorney that “knows more.” So much of our work is in our head. Settling the body and settling ourselves in these times actually happens in the body. What percentage of our livelihood is our mind physically, and what percentage is our body? That’s an interesting question to ask. So much of us is our body. In fact, most, if not all of us, is our body.

Rudhir: One of the first tools that we talked about in this webinar was a body scan technique. A body scan is a meditation technique that allows us to just pay attention to what else is happening right now in our body. There’s just a lot of information there. Lawyers are great at gathering information. We’re incredible at intake. I think in this moment one of the tools is just actually take intake for yourself. We’re always asking someone else, “So what’s your problem? What happened? Who are the people involved?” Et cetera. The questions that I offer are, “What’s happening in my body right now? What’s happening in my breath? What am I noticing in my chest? Is it tighter? What am I noticing in my stomach? Am I at unease? Are my feet grounded? What happens? What’s the difference between grounding my feet versus sitting them elsewhere? What’s the quality of my breath? What’s my body temperature?”

Rudhir: I think when we scan our bodies… And on my website I have mindfulness audio recordings and guided meditations, and these are available all over the place. There’s apps like Calm and Insight Timer and Headspace. UCLA has an incredible meditation center, and they have some great guided meditations. I offer a few on my website at Krishtel.com. Basically, what we’re inviting people to do is actually just pay attention to what’s happening for them in a moment.

Rudhir: This isn’t something that we need to do all day. A body scan meditation can be 10 minutes of your day, five minutes of your day. Pay attention to your breath. Even right now is one of those podcasts, Teresa, if you just sort of take a breath and pay attention to what’s going on in your lungs and what’s going on in your throat and just breathe. You just notice sort of a different quality show up. We kind of exist in this on edge slightly underlying nervosa, and it’s normalized in our practice. I think we can in this moment because it’s even exacerbated, it’s slightly more acute because of all the information coming in and everything that’s changing, I think is an incredible time to pay attention to breath, pay attention to body and just what’s going on for us.

Teresa: That’s really helping in hearing you talk about almost an inventory of awareness. Rudhir, for those, wellness has been a buzzword that’s been around and gaining increasing traction and attention in recent years. Can you break down mindfulness for those that may not be familiar with that term and just help us understand when we say mindfulness, when you say mindfulness, what do you mean?

Rudhir: I’d love to. I’d start by actually just saying that when I started regularly meditating, it was the beginning of an incredible shift in my life both professionally and personally. It’s for those who are exploring meditation and dabbling, the commitment to a practice of 20 minutes a day, 20 minutes twice a day or even 10 minutes a day of mindfulness practices I think can be the beginning of a huge evolution and even revolution in your life in terms of how you feel and just fulfillment.

Rudhir: When I was at Apple about a year or two in, I started a daily practice of 20 minutes twice a day of meditating. I’ll tell you a little bit more about what is mindfulness and different ways of practicing. Just to kind of get people in tune with the benefits, I started practicing, and so much changing. Three months of regular practice, I committed to 20 minutes twice a day, and I did it because actually I paid for a class. When you pay for a class for some reason, it’s just like a gym membership. Something happens, and you’re like, “All right, I’m paying the money. I’m going to make a commitment.”

Rudhir: I make the commitment of 20 minutes twice a day. I’m a coffee drinker. It’s not the morning coffee. It’s the 2:00 p.m. coffee for all my friends at Fish and Apple. At 2:00 p.m. it was clockwork. I’d come around the halls and say, “All right, let’s just go get coffee.” I noticed after two or three months of practicing… It’s not like it has an alarm set, it’s just at that time of the day you start feeling a little bit tired. My morning energy is I’m ready to go. Around 2:00 p.m. it starts to wither.

Rudhir: I started to notice three weeks had gone by and I hadn’t asked anyone for coffee. I’m an engineer by trade. Trained as an electrical engineer, studied, became an IP attorney, so I need a logical underpinning for a mental practice. At least I did at that time. I don’t anymore. I’m all in now. But back then I sort of needed some evidence. The evidence was just clear. I have so much more energy that I don’t need coffee. I don’t drink coffee from 7:00 a.m. until midnight, and I’m just fully functioning.

Rudhir: I couldn’t believe the shift that happened for me in that moment that I was getting a physical benefit to a mental practice. That’s when I decided I was all in. I started to have healthier interactions professionally. I started to notice that things were slowing down. People talk about time is going by fast. That’s not a thing for me anymore. Time actually does not go by fast. I started to worry less about all the things that were coming and about what was happening. I just started to feel more present.

Rudhir: There’s so much energy there. The energy is because… And this is for the people that are just looking for the logic. If your mind is moving less, and it’s sort of moving at a less rapid pace, it’s triggering less emotions. If you think about when you pay attention to what your thoughts are in a two minute period, “What am I going to eat for lunch?” It’s the basic thoughts. “What am I doing this week? What’s my schedule? What am I going to eat for lunch? What’s for dinner? What’s happening with that meeting?”

Rudhir: Each of those thoughts… And you notice in a two minute period they just keep spinning. Each of those thoughts may trigger and may bring out an emotion. When emotions come up in our body that is a moment where your energy starts to get drained because an emotion can trigger you to hunch your shoulders, and you don’t even realize. It may start reducing… slowing down your breath. You don’t even know. When that email comes in from that challenging client or from that colleague, you sort of hold your breath.

Rudhir: Those little moments add up in the course of the day. In our jobs you can work from 8:00 a.m. until midnight, not leave your desk, and feel like you ran a marathon that day. Mindfulness and meditation practices start to slow that down. They start to slow down the rapidity of the thoughts. They start to readjust how reactive you are to these things. They relax your body in these moments when you might naturally be tense or stressed. You’re gaining back 5% to 10% energy.

Rudhir: There’s this book Ten Percent Happier. I relate to almost everything that’s in that book because you really are. Ten percent more energy in this moment can be huge. How much more energy do you have at the end of the day for your colleagues, your clients, your family? You just have so much more energy. Just 10% can make such a difference. You were asking about what is mindfulness, but before I go into that, I’m curious if any questions are coming up for you based on what I’m saying?

Teresa: Well, I’m just anticipating questions. I think seeing the email come in or thinking about the email, it’s not saying that email is not important or that client’s need isn’t important, it’s putting it into a place where we’re not maybe as reactive to it, where it’s kind of processed in a way that is a little more centered. Right?

Rudhir: Yeah. This is a great dovetail into what is mindfulness because I think there’s a lot there. When I think about mindfulness you’ll see a range of definitions. But I consider if we’re paying attention to ourselves, our thoughts, our emotions and our body, and noticing what’s happening with those things, without judgment. And the without judgment piece is actually really important because oftentimes what’s happening for us we might think is wrong or something’s not great about it or amazing about it. Mindfulness is actually just let’s just pay attention to what’s happening.

Rudhir: I talked about this body scan technique as sort of one way which is paying attention to what’s happening with your feet and your legs and your stomach and your lungs and your shoulders. When that email comes in as an example. We all know that email, that alert, that case alert. That colleague, that person we don’t like, all of it. It happens at least 10 times a day. Ten times a day, 20 times a day, 100 times a day you tense up when that message comes in, and just sort of noticing what’s happening in your body in that moment rather than necessarily solving the email. Because our first reaction is what am I going to say? You might notice the quality of your breath in that moment that you’re actually not breathing. It’s fascinating just taking a deep breath in that moment rather than reacting right away and just noticing what happens to your body that it settles.

Rudhir: Noticing what happens to your shoulders, they tighten up, that you sort of take a forward learning approach, that you might get uneasy in your stomach. All these things are happening. As we pay attention to that, when we’re responding to that email from that place, it’s actually fight or flight. We’re responding from a place of fight or flight. Fight or flight is sort of an old… It’s an old system. It comes from an old brain of ours. It’s the amygdala. It’s an old brain. It’s a lizard brain that we have. It basically really comes from this era and this time of evolutionarily when we were sort of fighting bears and lions. You’re sort of out in the wild and you’re worried about fight or flight. Either I attack this thing that’s in front of me or I’ve got to leave.

Teresa: Base survival.

Rudhir: It’s survival. Yeah. By and large in our legal office, outside of that scary partner in the corner, there’s no bears around. There’s no tigers. For us to be experiencing fight or flight as much as we do in the course of our day is really a ratio that it happens versus the actual need is way out of proportion. The other thing is that creativity, centeredness, true leadership, aren’t happening when we’re in fight or flight. We’re not coming from a collected and a gathered place. We’re coming from a reactive place.

Rudhir: When we write a brief in a case, we don’t write a react, we write a response. I use these two words differently. There’s reacting, and there’s responding. I think responding comes from a place when we gather data and information, we use our wise lawyer selves, we are using wisdom, and we are responding in a gathered and a collected way. We’re reviewing. We’re able to come back to people from a centered place. That’s what we want in our briefing. That’s what we want in our responses to our colleagues, in our communications. We end up feeling in a reactive place, and so it’s fight or flight. It’s like, “If they say something, I can defend myself,” or “I’m going to avoid this email for a few hours because I’m nervous about what’s going to happen.”

Rudhir: So all these things come up. But when we take a breath we notice what’s happening in our shoulders, we notice what’s happening in ourselves, we notice the thinking and the nervousness that might be happening in our head. Maybe we can respond in a healthier way. Maybe we can slow down some of that movement and gain some energy back.

Teresa: Interesting using the word creativity. We’re in a transformative moment. Whether it’s a temporary transformation or whether we’re going to see lasting effects. We have the White House signing the Defense Production Act. Many people working from home. I’m sure for many there’s a lot of scary elements to what we’re seeing with the public health crisis around COVID-19. You and I we’ve had some earlier conversations about possibilities out there, but what do you see, Rudhir, right now as possible in this moment?

Rudhir: We have to be very thoughtful about many people whose health is being compromised in this moment, and we have to really be thoughtful about many people whose lives have shifted and are challenged by access to resources and hourly workers and wage workers whose jobs are being eliminated in the short term. There’s a lot of challenge and compromise that’s happening at this moment. We want to make sure that we keep our awareness on that.

Teresa: Right.

Rudhir: I actually feel like interestingly enough a lot is possible in this moment. I think there are new ways that we’ll be able to connect with people and we’ll be testing out. For example, this webinar that I’m doing or the greater number of video calls and group calls that I’m having online where people are finding healthier ways to interact. I actually think it’s an incredible time to call that colleague or that contact that you haven’t been in touch with for a while and just say, “Hey, how are you doing?” And just get on the phone or get on a video call and just listen and be with somebody and connect in a way that you might not have otherwise.

Rudhir: I do feel like people might have a little bit more time now, and if you think it’s a time where, for example, business development dies down, I think actually it’s the exact opposite. People are looking to connect in this moment, so fill that void. Finding new ways to connect right now, to reach out, to interact, to connect with your families and yourselves, I think that’s huge in this moment.

Rudhir: I think time alone can be an incredible time for coming up with new solutions and to be creative. I think about Isaac Newton came up with some of his most valuable theories, the roots of calculus, and the basic understandings that we have on gravity, some of the most critical theories that he came up with were during the Plague when he had to leave Cambridge and isolate during that moment.

Rudhir: Social distancing, this isn’t the first era of social distancing. This has been going on with every pandemic that we’ve experienced in the history of time. Even in that moment he came up with some of the most valuable scientific principles and mathematic principles that we lean on today. There’s this huge opportunity in this moment to be creative, to think about what’s possible.

Rudhir: And as lawyers we are in this service industry, and so there’s this incredible opportunity to think about what are the new ways and the different ways in which we can serve others and add value? When we are reactive and in fight or flight, we aren’t thinking from that place. We’re wondering how to protect ourselves or wondering how… what’s going to happen to us. But when we start slowing down and rooting in, we remember that there’s so much possible in this moment for all of us, so many systems that we can build to serve our clients and to support our colleagues.

Rudhir: I’m going to be offering team building webinars in the next few weeks. Here’s an opportunity. Your entire team is isolated. How do we stay connected in this moment? So maybe we jump on an hour and a half Zoom call, and we actually do a team building exercise, facilitated exercise, in this moment. For me, I just feel like so much is possible, and it’s time to really start thinking about creative ways that we can connect with others, which we all need as humans and in our professions, and so what are the ways that we can do that now?

Teresa: That’s really interesting. We’ve been hearing talk about… We’ve all been hearing the guidelines around social distancing, but moving to the term physical distancing to recognize that we need… We still as humans we still need a little bit of that connectivity that you’re talking about. Interesting. Rudhir, some of the resources we’ve been monitoring and sharing with our clients have been resources you have been sharing with broader audiences. Can you talk to us about what’s out there right now? What resources are there? You’ve really been pouring a lot of your focus to provide some guidance and help right now in the recent days and weeks. What’s out there right now? What are you working on, and what could you suggest as resources for people?
Rudhir: Well, we mentioned it once already, but I’m doing this weekly webinar on mindfulness tools for handling uncertainty, and I’m doing this every Wednesday morning through my relationship on the co-chair of the wellness committee for the National Asian Pacific American Bar Association. We’re doing a similar webinar on Thursdays every week right now, myself and a mentor of mine, Angela O., are doing this webinar every week for that community.
Rudhir: I’m talking with the Association of Corporate Counsel on putting out a webinar on what tools we can use to manage the challenge. There’s a couple of bar associations that I’m working with on how we can exhibit our leadership in this moment. How can we show leadership in this moment of challenge and difficulty? From my perspective, there’s a lot of offering that’s happening in this moment, and I think what’s really beautiful and really nice about the community is actually seeing all the things that are being offered up in this moment and ways that we can support each other.

Rudhir: I think it’s a great time to pay attention and listen and get online and see what’s being offered by others. There’s a lot of opportunities to interact in workshops and dialogues and ways to connect from home right now that I think people should be tapping into. I think it’s also just a time to connect for people that have the luxury of doing that with family in their home or even with nature. There’s no restriction on necessarily going out in some areas and actually just taking a walk and connecting in that way.

Rudhir: I do workshops on building resilience. Part of those dialogues we talk about, “What’s restorative for you?” What’s restorative for you? The answers that people typically come up with are things that are just very accessible to us even in this moment, which is time with my family and my friends, connecting with my pets, eating a really good meal, watching a good show, taking a walk in nature. All of these things people find restorative are by and large free and still very accessible to us in this moment.

Rudhir: This might just be a nice healthy hibernating moment for all of us. I think that another thing is this is actually a great opportunity for skills building. I work with a range of clients. For some of them, presentations and stand up are something that they like working on. There’s nothing stopping people from being at home and recording a presentation and seeing how they are. When we start thinking about what’s possible in this moment, I feel like there is so much opportunity.

Teresa: One of the other areas, we were discussing earlier, Rudhir, related to the new work at home scenario. Looking at the normal heavy workload that an attorney deals with, at least having that separation between work and home, without being blurred now, which not the case for you necessarily. You’re accustomed to it. What guidance are you providing right now for how to handle that new blurred line and how to handle what is really a novel situation for many professionals and especially for attorneys?

Rudhir: I think that it’s very interesting seeing this transition that people are making to being at home. Luckily, I’ve been working at home for a few years now, and so this transition wasn’t so difficult. I definitely feel like there are things that we can do to make this that much more comfortable. First, I think for people that don’t work from home a lot, it’s actually setting up a comfortable situation for sitting.

Rudhir: Some people might think this is the time to just work at the dining table or in that uncomfortable chair, but we might be here for a while. Maybe it’s time to get a nicer chair, a nicer desk at home. Maybe it’s time to invest in that, a standup desk or something, a chair that’s got good support for you. So actually just sit in a place that’s comfortable and not necessarily in the thing that you might default to when you do a little bit of work from home.

Rudhir: Second, I think that things that are really helpful are really when we’re working from home the boundaries really start to fade between work and home literally. There’s really no boundary anymore. You might have this urge to almost work all the time. There’s really no limit to it. I think there’s this mentality around clocking in and clocking out that I think can be a really welcome shift in this moment.
Rudhir: If you’re putting in certain hours, actually when does the pen go down? When does the laptop get shut? What are the few hours during the day where you’re actually just doing the thing that you need to do to take care of yourself or center? For some people, they’re not commuting anymore. They use that commute time as the period to transition from work to home. Create that transition period for yourself. Sit for five or ten minutes and do nothing and allow the mind to settle and shift. Let’s not just use all of our time now or fill all of that time with work because doing that along with all the information that’s coming in and the way that the world is changing can really start draining you further.

Rudhir: I think healthy boundaries with work right now are imperative and actually maybe just creating some mental shifts. When I go down to the living room, when I’m in my next room, that’s when I put the laptop… The laptop stays in this area of the house. I don’t let it carry everywhere. Just trying to think about physical and mental barriers that you can start to create between work and home even when you’re in one place so that it’s not all bleeding together. We work effectively when we are restored. We need to reenergize. So think about the things that reenergize you and try to build in systems at home that allow you to keep that energy.

Teresa: That’s helpful. Rudhir, you mentioned one mentor a few minutes ago in our conversation. Can you talk to me about any mentors that you’ve had throughout your career who’ve especially shaped your thinking, shaped your own career?

Rudhir: There’s so many. It’s a difficult question. I remember when you emailed me in advance about some of the things you might ask, I said let’s do this at the end. I was hoping it wouldn’t even get to these. I have so many mentors. There’s so many people that have been valuable. In the work that I do I always feel like I stand on the shoulders of so many people that came before, and so there’s just so many experiences that I have that are learning.

Rudhir: I think the place to start is that I just feel like every opportunity and every interaction is a moment of learning. I feel like I’m learning from people all the time. Mentors is a really higher elevated state for somebody I feel to hold that space. I learned so much from my clients. I learned so much on calls like this. I learned so much from every interaction. I think the first thing that comes to me is actually just not losing sight of the learning opportunities in every interaction. What can you learn about this person across from you and the rich experience that they have? What value might you be able to get in that possibility of that conversation?

Rudhir: The person that made this entire next chapter of my life that much more possible for me was my wife. When I was in my last few years at Apple, I started to feel this itch, and it was… I’m not sure, but I can’t say that I’m as happy as I’d like to be in my life professionally. I think there’s something else. I don’t know exactly what I want to do. I’d sort of come home every few days with this dialogue with her.

Rudhir: I’d sort of talk about different things that I want to do. I’d tell her, I’d say, “You know, I think I need a month or two off. I need a month or two off. I’m going to ask my manager and team if I can combine my four weeks of vacation with one other month off. It could be unpaid. I don’t care. I just need a couple of months to sit.” She said, “You don’t need two months. You need a year.”

Rudhir: I just thought, ” A year?” Apple doesn’t have a year long sabbatical program. How are we going to do that? She said, “I’m giving you a year.” She said, “For one year you don’t need to do a thing. You don’t have to generate any income. You don’t have to do anything around the house. You don’t have to do anything for a year, and whatever you do after that I don’t care. But for one year just take a break.”

Rudhir: I have never had that kind of permission before or just being met by somebody that was saying, “Look, you’re good as you are. You don’t need to do anything.” I think that that’s amazing. I just felt like to get that type of support from somebody… My wife runs a nonprofit. My mind was, “How are we going to manage the finances and everything?” She’s like, “We’ll budget. We’ll plan the way that organizations plan when they go through a transition.”

Rudhir: So we made the plan. As soon as the plan came into place, and I saw that it was possible, everything that was happening was leading to signs of leaving and taking this time off. I think she has a way of thinking and a being that’s very different from what I’m used to in my environment. It’s very refreshing. She really values people taking the time to restore because we don’t know what’s possible. She’s really at the sort of root of this transition, which is allowing me the time and space to think and see some of the challenges in our workplace.

Rudhir: What I did during that time off is I just wrote a lot and investigated and understood a lot about our work, and that’s what allowed me to see this opportunity for stepping into this whole new career path for me. When I think about people that I look up to or I look to, I think about right now in this moment of my life I think about my wife first.

Teresa: Rudhir, that’s really wonderful to hear you say it, and I appreciate you sharing too on such a personal level that story.

Rudhir: Well, I just want to offer that in this moment I feel like we’re experiencing challenging times. I feel like we’re part of an amazing profession that can actually offer a lot. If anyone could use any support or has any questions, please feel free to reach out. My website is Krishtel.com. My email is simple. It’s my first name Rudhir@Krishtel.com, and I’m sure you’ll be providing it, Teresa.

Rudhir: But feel free to reach out in this moment because I just feel like it’s an incredible opportunity for making sure that all of us are feeling good in a way that allows us to support our community in the way that lawyers do. We are very important center, I feel like fabric, of the world. I feel like we are really the center of a lot of leadership in the world. I feel like we’re in this position to offer a lot, and for anyone that needs support through that process I just welcome people to reach out and connect.

Teresa: Thank you, Rudhir. It’s been really wonderful speaking with you learning more about what you’ve been doing. We’ve enjoyed seeing it and really are happy to be able to share it with our audience too. We will be in touch for sure. We’ll definitely have your resources available on the podcast.

Rudhir: All right. Fantastic. Thank you, Teresa. Talk soon.

Teresa: Thanks, Rudhir. You too. Bye-bye.

Rudhir: Bye.

ARTICLE BY Teresa Barber of IMS ExpertServices.

For more on Law Office Management, see the National Law Review.

The Ever Thinning Right of Privacy at the Border—A Warning for Attorney Travelers

Immigration Commentary

It was March 2, 2020, at around five in the afternoon, right before the COVID-19 pandemic went out of control, and cities and states started to issue stay-at-home orders.

I had just gotten married to my wife on February 28 in Mexico. On our flight back we traveled with our family, around ten people in total. As we went through the automated customs system, my wife got an X in the receipt that the customs’ machine sometimes gives you. Mine did not have an X but, since hers did, I accompanied her to the agent’s kiosk that reviews receipts marked with Xs. When we got there, the agent reviewed her passport quickly, and told her that she would have to go through a secondary screening in what they call the “little room” or “el cuartico” in Spanish. As her husband, they let me go in with her.

We were in the “little room” for a few minutes, not too long. They reviewed her passport and then we were told to go to another place, following a long pathway full of orange plastic cones that took us to another agent, in a zone where there were scanning machines. The agent opened both of our bags, looked at them carefully, item by item, and then told us to sit and wait.

As we sat and waited for around twenty minutes, two agents came in and introduced themselves as being from the Investigative Unit at the Department of Justice. They showed us their badges. Without giving any details, they told us that they had orders from the agent-supervisor in charge to take our phones and laptops. My wife and I are both lawyers and, as such, reacted quite surprised, and quickly asked why. Both agents–one very polite, the other, not so much–told us that they could not tell us why they needed our phones and laptops, or what the whole thing was about. A back and forth, at times intense, ensued.

Our immediate reaction as lawyers was to say: “You don’t have a right to do that. Please show us a warrant to search our phones or laptops.” We additionally disclosed to them at that point that we were attorneys, and that our phones and laptops contained attorney-client sensitive information, and that such information does not belong to us but to the client. The polite officer did not say much. The not-so-polite officer said, essentially: “I don’t care” and that “at the point of entry we have a right to inspect these things.”

At the time, I did not know the law on this topic. As an immigration lawyer, I knew that non-citizens seeking admissibility do not have a constitutional right to privacy. I thought that a different standard applied to U.S. citizens—which we both are. The agent seemed to disagree. I did not have time to research the law on my phone. The agents made us place our phones on the table, so we could not use them. The back and forth with the not-so-polite agent turned more intense. We managed to persuade him to let us use our phones to call our lawyers.

We called three lawyers. First, a good friend, Juan Carlos Gomez, an immigration law professor. He was of the view that if they were going to search our phones and laptops, they needed a magistrate’s order or a warrant. I then called two good friends and excellent criminal attorneys. Both of them said something similar: “If they want to take it, they are going to take it, and there’s not much you can do about it. You just need to make sure you are making it clear that you don’t consent, and thus, anything inside cannot be used against you.” All three attorneys told us that we did not have to provide the passwords of our phones and laptops; we just had to turn them in physically.

My wife and I were both unconcerned about ourselves. We really had nothing to hide but felt (1) that our right of privacy was being violated, and (2) that our clients’ information was vulnerable. We both run small practices and take our phones and computers everywhere, as most lawyers do.

After some 60 minutes arguing with the agents, we agreed that we were going to wait for their supervisor to come see us before they took any of our laptops or phones. According to the not-so-polite agent, their boss had just been in a car accident and was going to take an additional hour. We said we would wait.

After around three hours since landing, tired, and with our family waiting outside, we said: “Let’s just give it to them, let’s not wait anymore.” As we were about to turn in our phones, the agent-supervisor appeared. He was a nice man. We explained to him the situation, that we were attorneys, that our devices contained confidential attorney-client information, and that if he could give us any details about the topic of their investigation, we could cooperate and provide them with any necessary information. The agent-supervisor was polite, understood our position, and said not to worry about it, that he was going to let us go with our devices. We grabbed them and left.

To this day, we are not sure whether the agent-supervisor let us go because of the hassle of having to deal with two lawyers to obtain information that may not be all that valuable anyway, or if he let us go due to the attorney-client privilege concerns we shared with him.

Can U.S. border agents take an attorney’s device which contains attorney-client privileged information?

The short answer seems to be yes.

The longer answer is laid out in the 2018 U.S Customs and Border Protection Directive No. 3340-049A (the “Directive”).^[i] Specifically, section 5.2 of the Directive, titled “Review and Handling of Privileged or Other Sensitive Material,” addresses this issue head-on.

First, the information has to be “identified” or “asserted to be” protected by the attorney-client privilege. This burden is on the attorney. In other words, if you have attorney-client privileged information, it is your duty as a lawyer to make the claim.

Second, after there is a claim of attorney-client privileged information, the “Officer shall seek clarification, if practicable in writing, from the individual asserting [the] privilege as to specific files, folders, categories of files, attorney or client names, email addresses, phone numbers, or other particulars that may assist CBP in identifying privileged information.”

Third, before any search may occur, where there is a claim of privilege, “the Officer will contact the CBP Associate/Assistant Chief Counsel (ACC) office.” Then, in coordination with the ACC, the Officer “will ensure segregation of any privileged material from other information examined during a border search to ensure that any privileged material is handled appropriately.”

Finally, at the completion of segregation and review, “unless any materials are identified that indicate threat to homeland security, copies of materials maintained by CBP and determined to be privileged will be destroyed, except for any copy maintained . . . for purposes of . . . a litigation hold.”

In short, CBP officers may search a lawyer’s phone, but they have to “segregate” the privileged information. How confident can you feel about border agents “segregating” and not looking at privileged material in searches they do out of your sight? I think we don’t need to answer that question.

Can U.S. border agents access information remotely stored in “the cloud”?

The next question is how far they can search. We have not defined what a “device” is. Today, almost all smartphones are connected to “the cloud,” which allows you to access vast amounts of information beyond what is stored in the actual physical device.

The Directive also addresses this. It specifically states that “[t]he border search will include an examination of only the information that is resident upon the device and accessible through the device’s operating system or through other software, tools, or applications.” In fact, “Officers may not intentionally use the device to access information that is solely stored remotely.” The Directive goes on to recommend that “Officers request that the traveler disable connectivity to any network . . . or where warranted . . . Officers will themselves disable network connectivity.”

In other words, Officers can search your phone, but they cannot go into your Dropbox, iCloud, Google Drive or any other information that is stored in “the cloud” and that is accessed through internet connectivity. The question again becomes, how confident can you feel about border agents not accessing readily available information in Gmail, iCloud, Dropbox, and other cloud-based services? You really have no assurances that officers will not look at things you keep in “the cloud” that are so readily accessible. This underscores the importance of always having such applications logged out in your devices, but especially when you travel internationally.

Do you have to give U.S. border agents your password?

The Directive states that “[t]travelers are obligated to present electronic devices and the information contained therein in a condition that allows inspection of the device and its contents.” “Passcodes or other means of access may be requested and retained as needed to facilitate the examination of an electronic device.”

Thus, the Directive clearly says that you have to provide your password. However, it is unclear what remedy border agents have if U.S. citizens refuse to do so. In the case of non-U.S. citizens, it is clear that they could be denied admission into the country. It is highly unlikely, however, that a U.S. citizen attorney, making a claim of privilege, has to voluntarily disclose the password of the device that contains the privileged information. What happens if the attorney refuses to give his password? Will he be arrested? What if he is arrested and still refuses to give his password? Will he be physically forced? It seems to be one of those situations where it will be difficult for U.S. agents to enforce. Of course, U.S. Customs is not completely without remedy, as the refusal to turn in the password will result in the impounding of the device and its opening using other electronic means.

What to do?

We will never know why they wanted our devices. Likely, it was something related to one of the hundreds of clients we have represented. But we do not know exactly which client or what the investigation was about.

What we do know now and learned from this experience is that we live in a world with increasingly fading privacy rights, and that we have to learn, as lawyers, to take necessary precautions to protect our clients’ information. These precautions include traveling with devices that do not have access to cloud-stored information, such as Dropbox, Google Drive, Gmail, iCloud, or some legal software that relies on cloud computing. It is also important to travel with computers or phones that do not have anything in it that can be privileged. As seen above, even if the Directive says that the Officer has to “segregate” and not look at attorney-client privileged material, these searches happen out of your sight, and you have no control whatsoever over what the Officers look at. Until the Directive is challenged in court, Attorneys have to be extremely careful when they travel internationally.

[i] The legal authority or weight that the Directive carries is not the subject of this article; this article merely describes the current policy used by CBP in doing searches of attorneys’ devices.

ARTICLE BY Eduardo Ayala Maura The National Law Review’s Guest Contributors.

For more on attorney-client privilege matters, see the National Law Review Law Office Management section.

How Firm Marketing Leaders Can Shake Up the Law Firm “Caste System”

Marketing professionals and other non-lawyers are all too familiar with the age-old hierarchy that pervades law firms and treats attorneys differently from everyone else. Reminiscent of a caste system, this throwback aspect of law firm culture offers attorneys and staff two separate benefits packages, two separate leave policies, two separate dining rooms.

While this system never could have been called equitable, a few professional generations ago firm leadership could provide an understandable justification for it. Law firm staff worked a predictable nine-to-five schedule, while the lawyers put in hundreds more hours per year, working many “all-nighters.” Lawyers’ jobs were highly specialized, while the firm’s non-lawyers performed administrative tasks that were not central to generating revenue.

What a difference a few decades make. Technology has changed the nature of every role within the firm, allowing lawyers to at least assert some work-life balance by working remotely while non-lawyer staff members likely spend longer hours than ever in the office. In addition, today’s forward-thinking firms have expanded the c-suite to include chief marketing officers, chief information officers and chief financial officers. Increasingly they are also hiring internal operations managers and other pricing experts who can speak the same language as the procurement professionals GCs count on to save their companies money. Each of these members of the team bring highly specialized training and skills to their role — and make a measurable impact on the bottom line. And whether managing partners genuinely value their skills, or are simply responding to client demand for their expertise, the result is the same: these professionals now have a seat at the table with clients.

Given this new reality, it no longer makes sense to cling to a law firm culture that renders non-lawyers second-class citizens. And yet old habits die hard. CMOs may finally be getting (a portion of) the respect they deserve, but what about the members of their teams who execute marketing strategy and play a crucial business development role with existing clients?

To be sure, marketing professionals still face an uphill battle in demonstrating their value to firm leaders. But the upheaval in the old system has created an opportunity for CMOs and marketing directors. With the right strategy and messaging, they can use their newfound platform to advance a discussion about firm policies and shed light on the fundamental work of non-lawyer professionals. Here are three ways to get started:

Rebrand your legal marketers as a business development team. Think carefully about how you talk about what you do when you interface with other stakeholders in the firm. Craft your messaging to emphasize the ways in which marketing directly generates revenue. For many large firms, a significant portion of new business comes from expanding engagements with existing clients, and marketers are on the front lines servicing those client relationships and creating opportunities for attorneys to sell across practices.

And make the case with data. Marketing leaders can use many available tools — from the simple to the sophisticated — to collect and process information about their campaigns and initiatives, and understand what really gets results. Firm leaders respect and respond to hard numbers that help them assess how your department is converting firm resources to new opportunities for business development.

Speak up about policies that don’t pass the smell test. The broader culture is extremely sensitive to matters of diversity and equity, and while law firms may be later arrivals to this conversation, their corporate clients are paying close attention. Is the cost savings of a two-tiered benefits package (assuming there is one) really worth the potentially damaging optics of a negative news story on the firm’s throwback culture? Is your diversity and inclusion initiative really embracing inclusion if only lawyers — and not professional staff members — are invited to participate? Legal marketing leaders can use the credibility they have gained to make the case for reexamining problematic policies and suggesting alternatives.

For most legal industry veterans, it’s impossible to imagine law firms that don’t elevate lawyers high above the rest of the staff. And while we probably won’t be saying goodbye to this outdated aspect of firm culture anytime soon, the demands of the marketplace have introduced some much-needed wiggle room into long calcified roles. Don’t miss this opportunity to help firm leaders appreciate the crucial contributions of legal marketers.

ARTICLE BY Debra Pickett of Page 2 Communications.

For more on law firm marketing, see the National Law Review Law Office Management section.

KnowIt 2020: Intellectual Property in a Digital World

KnowIt is a groundbreaking new annual event that brings together the community of creators and protectors of intellectual property and other innovative outputs for an unprecedented discourse and collaboration. With dramatic shifts in both consumer and business technologies, as well as social trends and business models, now is the time for KnowIt.

THE DIALOGUE AT KNOWIT:

Includes intellectual property, but goes beyond IP to include all human (and artificial) intellectual output;
Includes lawyers and matters of law, but goes beyond law to include the business and science of creating and protecting innovations;
Includes panels and speakers, but goes beyond the passive listening experiences of the past to facilitate actionable exchange and collaboration.

Attendees at KnowIt will include lawyers (in-house and outside counsel), academics, inventors, authors, brand creators, cybersecurity and privacy professionals, leaders in government, regulators, startups, tech companies, investors, non-profits, media, Wall Street analysts and more.

As an attendee, you will be immersed in unique and engaging sessions about the future of intellectual enterprises, and will connect with peers beyond those that hold the same job title as you. The agenda features unique general sessions as well as more intimate conversations. KnowIt also provides a multitude of ways to meet and interact with your peers, clients, lawyers, creators, partners, vendors and friends.

KnowIt doesn’t focus on the nuts and bolts. Instead, it examines critical issues that are fundamental to understanding the changes happening today, and the changes that will define the innovation of the future.

Join us on May 11-14, 2020 at the Aria Hotel in Las Vegas, as we define intellectual output in a digital world and usher in the Fourth Industrial Revolution!

QUALIFIED IN-HOUSE AND OUTSIDE COUNSEL PARTICIPANTS GET 50% OFF TICKET PRICE!

Attorney Wellness and Mindfulness Part 2: What does Mindfulness Practice Look Like?

In Part I of our series on wellness in the legal industry, Elena Rand, a former litigator and legal executive coach with a Master’s degree in Clinical Social Work and current CMO of Wiggin and Dana identified why the legal industry needs to understand chronic stress and how it impacts the body, and how mindfulness, even at a basic level, can help improve both individual attorney’s performance and the often stressful law firm environment.

Today, Ms. Rand goes over the basics of a mindfulness practice, as well as addressing some common barriers to practicing mindfulness and how to overcome these barriers.

What are some simple practices that a novice or even a skeptic might be able to take on to start feeling some small benefit? And along those lines, do you need to devote a lot of time to mindfulness practices to begin to see a difference? What kind of commitment level do you need to show?

There is no right or wrong way to do mindfulness practice. There are no absolute time requirements or limits and there is no Olympic medal for “ great mindfulness”. There’s no level of perfection, there is nothing to “achieve” or “strive for” and that’s a key part of the practice. In fact, if we go back to what mindfulness is, it asks us to be accepting of whatever comes up and sometimes whatever comes up is “I only have five minutes to breathe and guess what? In those five minutes, I’m obsessing about that conversation that just happened down the hall,” but mindfulness is being aware of exactly that, and accepting of that. That is the work. It’s saying, “you know what, I just spent five minutes inhaling and exhaling and trying very hard not to think about that conversation, and all I did was think about that conversation.” If you brought your attention to that in the moment and then proceeded to pay attention to the next moment, and the next moment… well, then that is mindfulness meditating. You were just meditating. I want to debunk the idea that mindfulness is this sort of clear-minded perfection that will alleviate all your worries, obsessions, preoccupations etc.

You can do it for five minutes, you can do it for 10 minutes, you can do it for three minutes, you can do it in any number of ways. But again, it’s intentionally bringing your attention to what’s arising and accepting it.

As to how do you actually do it—well, definitely one way that we’ve all heard of is breathing techniques. And there’s a lot that’s been written about just focusing on your breath.

Inhale, exhale, inhaling and exhaling for any number of minutes is a start. And during that time what will invariably happen is what’s been called monkey mind, which is a flurry of thoughts. Everything from your clients, a brief for the meeting you have a four o’clock as well as an argument you had with your spouse and your conversation with a firm partner. All of that’s going to be going through your mind while you’re just trying to inhale and exhale. And that’s the practice. And the idea is to gently bring your attention back to the singularity of your breath over and over and over and over again. So that’s one modality, but some people I’ve worked with really aren’t into the breathing thing, and they ask for another way.

Another way is intentional activity. Select something that you know you do every day. Eat lunch, go for a walk, drive home and bring your attention to that action. What does it feel like? What does it feel to actually taste my food? What is it? How many times do I chew? What does it feel like to actually swallow that food? Am I hungry still? Am I not? This is a mindfulness practice that focuses on taking an action.

A third of mindfulness practice is what I call sort of a body scan. This is just sitting, not focusing necessarily on your breath, but focusing on your body, which we don’t always do. I mean, some people joke that our bodies are there to help us carry our heads from meeting to meeting. The reality is that many of us are not in touch with our bodies. The body scan is another opportunity to kind of pause, and bring explicit attention to your body. Start with your feet. What do your feet feel like? Are they grounded? Can you feel your feet? Can you feel your ankle? And then sort of work your way through your body and what the sensation is. You’re really looking for that sensory attention. So there are three examples of ways that you can introduce mindfulness in a practical way, you don’t need to go to an Ashram experience.

Let’s talk about identifying barriers. With wellness there’s a lot of mindfulness, there’s a lot of talk about self-compassion, patience, relaxing and will practicing all of this mindfulness take away from your competitive edge? Will mindfulness make it harder to win for my clients and my firm? It’s a tough world and I need to be strong and win. Is mindfulness going to weaken my competitive and adversarial instincts?

For anyone who really believes that genuinely I would recommend they read The Art of War by Sun Tzu. In that book, there’s a lot of wisdom about the power of self-compassion and compassion for your opponent that strengthens your ability to have real strategic clarity about what needs to get done next. So that’s from a philosophical perspective.

From a purely personal perspective, at the end of the day anyone who is going to be fiercely competitive and adversarial also needs clarity and strategy. That takes us back to what the purpose of mindfulness is, to improve your executive functioning by addressing your body and strengthening your ability so that you can endure. I think that that if you put it in that framework, you can actually sell it a little bit more to people who want to be more competitive and more adversarial.

This is the quiet backstage work that competitive attorneys have to be doing on themselves in order to go into battle and be as effective a warrior as they can be. I don’t see it as at odds. I see this as adding to their repertoire of, strategic skill-building so that they can be as effective and as competitive as they want. It’s working on a muscle that has kind of atrophied, which is self-care, and their wellness and strengthening that so that they can choose to do with that whatever they would like.

The law offices like many business environments, seem to be in a constant state of emergency which can make it difficult to be consistent with a mindfulness practice. How do you maintain a mindful practice in a high-pressure environment? Are there any tips, tricks, life hacks, anything like that to make it more likely to be successful?

What I personally do, which is very simple, is I have a separate space, a different chair. It doesn’t look like a meditation chair. I get to sit in that chair and I have a cup of tea, in-between meetings or right before the end of the day. This chair is away from my desk, and I will intentionally make a cup of tea in my office and I sit in that chair and take some time for myself, measuring time with an app on my FitBit. Then, I know that at least I have incorporated some level of breathing or grounding or intentional action into my day, and that’s separate from my other practices. Some firms have taken to having a mindfulness group that meets together monthly.

I think when you introduce it that way to people it becomes achievable, but obstacles still exist. It takes about a month for an action to turn into a habit. One way to reach that point is to enlist a friend, someone who is like-minded and values achieving mindfulness as much as you do to help keep you on track.

I think one of the biggest obstacles is time and perception. The timepiece is personal. At the end of the day, if it’s important to you, you will find the time to take care of you, which goes back to wellness.

Again, I think a lot of people have a perception of, “Oh, that touchy-feely guru wellness stuff that’s all really kind of hip and important now in law firms.” I really worry and want to make sure that the concern for wellness is not a passing fashion. I want sustained change, and I think that even the perception of those types of wellness activities at law firms is changing as we have more and more millennials who are asking for it or expecting it, who are embarking upon it, who are creating, healthy boundaries around their work and their life and their wellness. The barriers of time, and how it is perceived, are changing, but it’s slow.

My big hope right now is that this doesn’t become a flash in the pan kind of interest, but rather a pivotal moment and a paradigm shift, like what happened 10 years ago with the law firm’s focusing on business development and maternity leave where the industry realized the need for change and there was a shift in industry norms.

I am a big proponent of embarking upon wellness as a lifestyle change and not a quick fix. There was no quick fix to changing maternity policies and flex-time at law firms. There was no quick fix to introduce in the ideas of business development and leadership skills, and there’s going to be no quick fix for really shifting the law firm culture into a wellness culture so that attorneys can be doing all the things that are expected of them. We need to embark on the change mindfully and with intention so that we bring about meaningful culture change to the legal community.

Many thanks to Ms. Rand for her time and expertise on this important topic. Elena Rand and Eilene Spear of the National Law Review will be hosting a panel on this topic at the Momentum Events Employee Wellness Event for Legal and Professional Services Providers at the Riverside Hotel in Fort Lauderdale on February 27- 28.

ARTICLE BY Eilene Spear and William C. P. Thieme of The National Law Review / The National Law Forum LLC.

For more on the topic, please see the National Law Review Law Office Management page.

Maintaining Attorney-Client Privilege Over Communications with Consultants Involved in Internal Investigations

When a company retains outside counsel to conduct an internal investigation of alleged wrongdoing, attorney investigators sometimes need or require the assistance of outside consultants, such as forensic accountants or technology specialists, to effectively represent and communicate with their client. While the extension of the attorney-client privilege to communications between counsel and such outside consultants has been recognized, the consultant must be integral to counsel’s ability to perform the investigation and convey and discuss the results to the client, and privileged communications with the consultant should be narrowly restricted.

In a recent case, SEC v. Navellier & Assocs., Civil Action No. 17-11633-DJC (D. Mass. Jan. 22, 2019), the court held that the attorney-client privilege did not extend to an outside consultant hired as part of an internal company review to assist counsel in advising clients regarding possible future litigation with the Securities and Exchange Commission regarding exchange traded funds. According to the court, the third party “must be ‘necessary, or at least highly useful, for the effective consultation between the client and the lawyer which the privilege is designed to permit.’” The court emphasized that the third-party consultant’s involvement must be nearly indispensable or serve some specialized purpose in facilitating the attorney-client communications. The court found that the consultant’s role in that case, while helpful in assisting counsel, did not rise to the required level of necessity; thus, communications between counsel and consultant were not privileged. The Navellier decision serves as a reminder to both companies and counsel to analyze as a threshold matter whether the consultant is truly necessary or merely helpful or convenient, and tailor communications with the consultant accordingly.

ARTICLE BY John F. Fullerton III of Epstein Becker & Green, P.C.

See more on attorney-client responsibilities on the National Law Review Law Office Management page.

How Attorneys Can Overcome the Fear of Cross-Selling

Being able to help your client with multiple legal issues can be a boon for your firm. After all, it generally takes much longer to develop new relationships than to maintain existing ones. The opportunity to cross-sell to clients by keeping them “in-house” after resolution of a matter, is one that shouldn’t be passed up. Extending this relationship should always be the goal because it’s frankly cheaper, not to mention more effective and efficient to nurture an existing relationship than to cultivate one from scratch.

Overcoming Attorney Fears About Cross-Selling

The above shouldn’t imply that there aren’t valid concerns about cross-selling, both within your firm or through collaboration with attorneys outside of your firm. Some of the common fears or objections to cross-selling to a client you’ve built a relationship with include:

Fear of losing the client to another attorney or firm.
Fear that you’ll refer a client and the other attorney will not be successful.
Fear of sharing compensation.

The fear of losing a client to another attorney or firm is legitimate. However, if the client came to you for a “one-off” legal matter, it is entirely possible that with or without your referral to a trusted colleague, they will pursue a bid from another firm or attorney anyway. So, you really have nothing to lose in this regard.

As for the fear that you’ll refer them to an attorney within or outside of your firm and that attorney won’t do a good job, thereby making you look bad—the best way to overcome this is by sending your client to someone who has a vested interest in ensuring that you continue to send referrals to them.

Finally, in regard to fear of sharing compensation, simply agree ahead of time to a compensation split with the attorney with whom you plan to collaborate.”.

While it is true that there is some risk that all three of these fears could potentially materialize, when compared to the potential benefits to be reaped by collaborating with other firms or other attorneys, the potential pros overwhelmingly outnumber the cons.

Client Benefits of Collaborating with Other Attorneys

You’ll notice that from here on out, we will replace the term “cross-selling” with “collaboration” because the last thing your clients need—who are coming to you for help during a possibly negative or complex time in their life—is to be upsold anything. Your role as counsel is to be a trusted advisor and confidant not a salesperson working on commission.

As a trusted advisor, with your client’s best interest in mind, your role as counsel is absolutely to point them in a direction or guide them to a colleague either within your firm (this is ideal as you can begin to build teams), or at another firm who can help when a legal matter arises that is outside of your wheelhouse. This is particularly true today as specialization in a niche practice is prevalent. In sum, your clients deserve access to the best experts available.

Collaboration also reduces the number of vendors that your client has to work with. Whether you team up with a colleague in your firm or partner with an attorney at another firm your client will see you as a team. They won’t feel as if they are adding yet another advisor and ensuing legal fees.

Collaboration also helps you better understand the business of your client. By working outside of your primary or preferred practice area with another lawyer, you’ll gain a deeper understanding of your clients’ overall needs, business, etc. Knowing as much as you can about them will make you a better and stronger advocate.

Clients aren’t the only party to benefit when you decide to collaborate with a colleague—attorneys benefit by maintaining the existing relationship, learning to work as a team in an area of law that isn’t a primary focus and by earning income from an existing client.

Tips for Successful Collaboration with Other Attorneys

Here are a few strategic “dos” that should help you successfully collaborate with other attorneys:

Determine compensation share from the beginning.
Take time to get to know the other attorney outside of the scope of the case.
Create a communication plan, including method and frequency.
Clarify roles from the outset of the collaboration.
Develop a reporting/information sharing protocol.

And one major “don’t”: Turn a client over to another attorney and then disappear.

When done correctly, collaboration leaves every practice better off. It’s not just “more money for more products.” It is far more cost-effective and efficient to maintain and grow an existing relationship than to develop new business, and it’s often in your client’s best interest. It’s also an avenue for team building and an opportunity for reciprocal referrals, which can only help your law firm.

ARTICLE BY Megan Braverman of Berbay Marketing & Public Relations Firm.

For more on attorney marketing, see the National Law Review Law Office Management page.

Tag: lawyers

How Marketers Can Better Support Inclusion for Women Lawyers of Color — Today

Like this:

IMS Insights Episode 11: COVID-19 Analysts Briefing on Litigation Impacts

Like this:

3 Cyberattacks and 3 Practical Measures Lawyers Can Take to Protect Themselves

The Top 3 Cyber Attacks Targeting Law Firms

1. Phishing Email Scams

2. Ransomware

3. Data Breaches

3 Practical Cyberthreat Solutions Law Firms

You Must Anticipate Cyberattacks on Your Firm

Like this:

IMS Insights Podcast: Episode 9- Rudhir Krishtel On Mindfulness And Wellness For Attorneys Amid COVID-19

Transcript

Like this:

The Ever Thinning Right of Privacy at the Border—A Warning for Attorney Travelers

Can U.S. border agents take an attorney’s device which contains attorney-client privileged information?

Can U.S. border agents access information remotely stored in “the cloud”?

Do you have to give U.S. border agents your password?

What to do?

Like this:

How Firm Marketing Leaders Can Shake Up the Law Firm “Caste System”

Like this:

KnowIt 2020: Intellectual Property in a Digital World

THE DIALOGUE AT KNOWIT:

Like this:

Attorney Wellness and Mindfulness Part 2: What does Mindfulness Practice Look Like?

What are some simple practices that a novice or even a skeptic might be able to take on to start feeling some small benefit? And along those lines, do you need to devote a lot of time to mindfulness practices to begin to see a difference? What kind of commitment level do you need to show?

Like this:

Maintaining Attorney-Client Privilege Over Communications with Consultants Involved in Internal Investigations

Like this:

How Attorneys Can Overcome the Fear of Cross-Selling

Overcoming Attorney Fears About Cross-Selling

Client Benefits of Collaborating with Other Attorneys

Tips for Successful Collaboration with Other Attorneys

Like this:

Share this:

Like this:

Share this:

Like this:

The Top 3 Cyber Attacks Targeting Law Firms

1. Phishing Email Scams

2. Ransomware

3. Data Breaches

3 Practical Cyberthreat Solutions Law Firms

You Must Anticipate Cyberattacks on Your Firm

Share this:

Like this:

Transcript

Share this:

Like this:

Can U.S. border agents take an attorney’s device which contains attorney-client privileged information?

Can U.S. border agents access information remotely stored in “the cloud”?

Do you have to give U.S. border agents your password?

What to do?

Share this:

Like this:

Share this:

Like this:

THE DIALOGUE AT KNOWIT:

Share this:

Like this:

What are some simple practices that a novice or even a skeptic might be able to take on to start feeling some small benefit? And along those lines, do you need to devote a lot of time to mindfulness practices to begin to see a difference? What kind of commitment level do you need to show?

Share this:

Like this:

Share this:

Like this:

Overcoming Attorney Fears About Cross-Selling

Client Benefits of Collaborating with Other Attorneys

Tips for Successful Collaboration with Other Attorneys

Share this:

Like this: