ABA Adopts Disputed Antidiscrimination Rule: The Law Finally Catches Up To Businesses It Represents

A new ethics rule by the American Bar Association (A.B.A.) sounds more like a satirical headline than a legitimate news article: “The [A.B.A.] says it is professional misconduct to discriminate against or harass opposing counsel, or anyone else for that matter, in the course of practicing law,” writes The New York Times and not, surprisingly, the Onion.

“It is time for the A.B.A. to catch up,” Myles Lynk, chair of the A.B.A.’s ethics committee, said during debate over the rule Monday (via the WSJ Law Blog).

The “new” ethics rule now prevents comments or actions that single out a person based on race, religion, sex, disability or other factors (duh!). Although almost two dozen U.S. State bars, including the District of Columbia, have already enacted such a rule, there was never a national ban on such behavior.

Without a strict rule prohibiting demeaning and misogynist behavior or parlance, it has been easy for opposing counsel or others in the legal profession to use it as an intimidation tactic with zero to no consequences.

“I got the pat on the head,” Jenny Waters, chief executive of the National Association of Women Lawyers, explained to The New York Times earlier this month, discussing a memorable incident while working in private practice (via the Huffington Post). Other attorneys also spoke of receiving “grating” remarks or being victims of demeaning actions, such as having an arm draped around their shoulders.

Shocking as it may seem, the rule has been controversial, igniting debate in the legal industry for months. Some claim the rule limits a lawyer’s personal freedom to practice law as he sees fit. But, to most, the rule was long overdue—now limiting hackneyed “honeys” and “darlings” to courtroom dramas, rather than courtrooms.

“I think it’s absolutely shameless that as lawyers we’re not the model for how businesses should run,” New York lawyer Wendi Lazar told the Wall Street Journal a few months earlier.

Nevertheless, opponents of the rule were able to dampen the language of the original text; in the end, the rule only applies where “the lawyer knows or reasonably should know [behavior] is harassment or discrimination,” which is a demonstratively weaker version than the original, reports the WSJ Law Blog.

Luckily, the rule still spells out what constitutes sexual harassment and which settings are included in this when it comes to practicing law. For example, settings include the courtroom, as well as “interacting with witnesses, co-workers, court personnel, lawyers and others” and “managing a law practice or law firm” or “participating in bar association, business or social activities in connection with the practice of law.”

On that, there seems to be no debate.

“Half my students are women. A quarter are students of color,” legal ethics expert Stephen Gillers, of New York University School of Law, told the Wall Street Journal (via the Huffington Post).

“The ABA has looked to them like an organization of old white guys. This vote will help.”

Let’s hope so. It’s about time.

-WB

Third-Party Litigation Funding: Low-Blow To Gawker Media?

If there are only two lessons to be learned from the Gawker Media story this week, it’s that money talks and third-party litigation financing matters.

The first conclusion—that money buys verdicts—is not a new idea. Of course money buys more lawyers, more appeals, and, as a result, potentially better verdicts. Although not always the case, the debate is alive and well in America. However, the second idea—that third-party litigation financing matters—is a stickier one.

Third-party litigation financing has existed in some form since the 1980s.¹ Personal injury victims, for example, have long been known to accept cash advances from loan agencies while their lawsuits are pending. Furthermore, lenders have been known to share equally in claims, once recovered, as investors.

However, as large-scale litigation increases in America, so has the phenomenon of third-party litigation investors. When several millions of dollars are at stake, new stakeholders tend to appear.

According to the “Report on the Ethical Implications of Third-party Litigation Funding,” submitted by the 2013 Ethics Committee of the Commercial and Federal Litigation Section of the NY State Bar Association, there were six corporations in 2012 that invested in commercial lawsuits in the United States.² Of the publically-traded corporations among these six, two existed primarily for the purpose of investing in American commercial litigation. The others—private companies—listed little to no information about their investments.

Today, the phenomenon has reached a new scale. Larger companies, even those with in-house counsel, are starting to sell off pieces of lawsuits so that they can smooth out cash flow and offload risk, prompting The New York Times to ask, “Should You Be Allowed to Invest in a Lawsuit?”

With that question in mind, the aforementioned article cites Juridica Investments, a Miami-based fund with $650 million under management, which specializes in working with Fortune 500 companies and aligning the interests of plaintiffs’ lawyers with those of their clients.

“You want the largest recovery, in the shortest time, with the least uncertainty,” explains Chief Executive Richard Fields.

But, hedging your litigation bets doesn’t stop at large corporations. Smaller companies use litigation financing to finance growth with their future award serving as a credit line. For investors, litigation financing of BigLaw is a big opportunity.

On the attorney side, there are potential downsides to accepting third-party litigation funding (TPLF). The New York Bar Association issued a formal opinion, for example, listing the following as potential pitfalls of TPLF, including:

• the potential illegality of the TPLF arrangement;
• issues with the attorney failing as an advisor;
• possible conflicts of interest;
• failure to obtain a waiver of privilege; and
• losing control over the proceeding. 

Enter, Gawker.

On Friday, Gawker Media told employees that the company has filed for Chapter 11 bankruptcy as a result of Silicon Valley billionaire Peter Thiel’s third party funding of several lawsuits against the company.

“The decision came after the Hon. Pamela A.M. Campbell of Pinellas County, Florida denied Gawker’s request to stay the enforcement of a $50 million bond that would allow it to appeal the $140 million verdict that a 6-person jury awarded Hulk Hogan in March,” writes J.K. Trotter for Gawker in the post, “Gawker’s post, “Gawker Media Is Filing For Chapter 11 Bankruptcy, Will Be Put Up For Sale.”

In a statement by parent company Gawker Media Group, CEO Nick Denton said:

“Authentic writing, whether it takes the form of honest reviews of technology, video games and entertainment, or revelations about the way the system works, is more important than ever. We have been forced by this litigation to give up our longstanding independence, but our writers remain committed to telling the true stories that underpin credibility with our millions of readers. With stronger backing and disentangled from litigation, they can perform their vital work on more platforms and in different forms.” 

Now, some sources are suggesting that Gawker may take legal action against Peter Thiel, who was secretly funding the former wrestler Hulk Hogan’s lawsuit against Gawker (he was eventually outted).

“The lawyers are exploring whether this could be a case of tortious interference, racketeering, or other potential claims,” a source at Gawker told Forbes.

The ethics of third-party litigation funding are certainly debatable, although the legality of it remains in a State-by-State chokehold. Maine, for example, requires that litigation finance companies register with the state and include specific funding provisions, while Ohio has a law requiring all contracts to state that the third-party investor “shall have no right to and will not make any decision with respect to the conduct of the underlying civil action or claim or any settlement or resolution thereof.”

Where decisions about third-party litigation funding go from here is a matter for the courts. But, for your law firm, it’s time to brush up on your own ethics opinions.

Third-party investors aren’t the sole source of stress in the legal profession. Difficult clients can be an equal burden. So if you don’t already have a policy or plan in place, consider taking The Center For Competitive Mangement’s course, “Dealing with Difficult Clients: Proven Strategies to Limit Problems, Avert Disagreements, and Ethically Handle Problem Clients.”

During this power-packed session, you’ll also learn how to deal with difficult clients and manage conflict, without sacrificing your sanity or your self-respect. Go here for more details.

In the end, the match-up between Peter Thiel and Gawker Media may not have a clean finish. It seems both sides are just beginning to grapple in what is both an ethical and legal fight to the death—which, after filing for bankruptcy, may be literally true in Gawker’s case.

 

-WB

References:

1. Shepherd, Joanna M., Ideal versus Reality in Third-Party Litigation Financing, 8 J.L. ECON. & POL’Y 593 (Spring 2012).
2. Shepherd, supra note 2 at 594.

Privacy & Ethics In An Internet Age: The Sad Truth For Citizens & Facts For Attorneys

There is no more privacy in America.

Friends. Family. Neighbors. Strangers. They can gather information about your whereabouts, your actions, your accolades, and even your darkest hour.

Take, for example, the case of three people charged with two counts of aggravated assault and other offenses in Philadelphia this week after a horrific attack on two gay men in Center City.

According to an article by The Examiner, about a dozen men and women in the 20s dressed to the nines and started for a night out. They ended up verbally and physically assaulting a homosexual couple based on the victims’ sexual orientation.

Then, assault transformed into theft as one of the suspects stole a bag containing the personal information of one of the victims. By the time police arrived on the scene, the group got away.

Or so they thought.

Philadelphia police quickly released a surveillance video of the suspects, which sent the social media-savvy public in a massive manhunt.

Blog, the Daily KOS, breaks down the process here. First, a Twitter user obtained a photograph that allegedly showed the suspects at dinner and retweeted the photo. Next, Philadelphia residents replied to that tweet with the name and location of the restaurant, located 500 feet from the attack.

Finally, another Twitter used went to the restaurant’s Facebook page and looked at who “checked-in”. Facebook users “checked-in” at the restaurant were easily matched to individuals seen on the surveillance photo.

There are at least a few attorneys—those defending the individuals arrested in the attack—who are gaining business from social media sleuths. But, certainly there are many other law firm professionals and citizens who have some concerns over the implications of incidents like this one.

Why? Let’s briefly consider another incident.

In 2006, an eighteen-year old woman crashed her father’s car into a tollbooth in Orange County, California. She was decapitated in the accident and the local coroner deemed the manner of death so gruesome that he did not allow the girl’s parents to identify her body, according to a recent article in the New Yorker.

“About two weeks after the accident, I got a call from my brother-in-law,” the girl’s father told Jeffrey Toobin of The New Yorker. “He said he had heard from a neighbor that the photos from the crash were circulating on the Internet. We asked the C.H.P., and they said they would look into it.”

Sure enough, two employees admitted that they had shared the photographs, which were now permanent additions to the World Wide Web of moral depravity.

People told the girl’s father it would all blow over.

“Nevertheless, [her father] embarked on a modern legal quest: to remove information from the Internet. In recent years, many people have made the same kind of effort, from actors who don’t want their private photographs in broad circulation to ex-convicts who don’t want their long-ago legal troubles to prevent them from finding jobs,” writes Toobin.

“Despite the varied circumstances, all these people want something that does not exist in the United States: the right to be forgotten.”

The New Yorker article discusses the U.S. versus European legal opinions about “the Internet’s unregulated idyll” here.

For law firm professionals right here, right now, the issue is very much at large.

When conducting an internal investigation, social media sites are veritable gushers of evidence. But counsel should curb their impulse to freely access and use social media accounts.

The rules surrounding the use of social media for investigations are changing as fast as online media grows and counsel must consider state enforcement rules, professional ethics opinions, and specific terms of use for each social media site.

What are the recent cases and statutes that have curbed some access to social media information? What are best practices for using specific social media platforms in an investigation? When is social media information discoverable? When is it not?

Can your employees at your firm answer all these questions? Are your clients aware of the same?

The New Yorker wants to discuss the right to fade away into the background. But what about when the law is justly brought against human rights violators, as in Philly? What about the rights to atone, stand up, or move forward?

Clearly lawyers are wrestling with many questions regarding the Internet and rights to privacy. At the same time, citizens—of all professions—should start to think about what side they’re on: the right to be forgotten or the right to be remembered.

For that last food for thought, there’s not clear answer. But, to learn more about social media and your law firm investigations, attend the Center for Competitive Management’s audio course “Social Media in Internal Investigations: What Every GC Must Know About Privacy and Ethics,” Wednesday, October 1, 2014, from 2pm to 3:15 EST.

This comprehensive webinar explores different methods for accessing and recording social media evidence, along with pitfalls, and practical tips for establishing an investigation that’s lawful, responsible and yields credible evidence.

-WB

What Drives A Great Olympian (Or Lawyer) To Win

All eyes are on London this summer during the 30^th Olympic Games. It’s hard not to be impressed with the diversity and talent exposed in HD each night on NBC.

Currently at 37 total, Team USA is just trailing China for the most medals won in this year’s Olympics. Nevertheless, these games, as always, are geared toward international cooperation and friendly competition among countries, which makes the story of each citizen—regardless of nationality—that much more inspiring.

The question on everybody’s mind: how did these talented individuals make it so far? Who is responsible for the great success of each one?

Across the world, men and women are cheering for their favorite athletes. And, young minds are imagining that, next time, it will be them on the podium.

It may or may not surprise you to find, among the most successful Olympians in London, there are at least five reasons why they’re bred—not born—trailblazers.

Within law or life, here are a few lessons that professionals can learn from Olympians about becoming one of the world’s greatest leaders:

1. No excuses.

South African runner Oscar Pistorius, nicknamed “Blade Runner” because he races on carbon fiber prosthetic blades, qualified for the Olympic Track and Field Championships last year with a time of 45.07 seconds.

He talked about growing up playing sports with brother Carl, “My mother used to tell us in the mornings, ‘Carl put on you shoes, Oscar you put on your prosthetic legs’ …So I grew up not really thinking I had a disability. I grew up thinking I had different shoes.”

Pistorius is considered a long-shot to win the 400-meter dash final on Monday. But, as the first-ever double-amputee athlete to compete in the Olympics, Pistorius is not making any excuses.

Like all great leaders, Pistorius is aiming to work hard and win high despite low odds. A handicap? Hardly. Quite the opposite—Pistorius would tell lawyers to walk in whatever shoes (or situation) they’re given and consider it a blessing.

By contrast, in a sport where shoes are unimportant, another Olympian provides fodder for inspiration.

“There are many people who want to start rowing because I have come to the Olympic Games. We will start when I get back. We just have to wait for the boats to arrive,” says wildcard rower Hamadou Djibo Issaka. Issaka knows his story has inspired others to row in places where the idea seems impossible

Why? Issaka is from Niger, a landlocked and mostly desert nation in Africa. He trained for just three months for the men’s single sculls—clearly, almost none of them, were in his home country.

Great leaders would never let a little sand (and no water) sink their boat.

2. Discipline.

With McDonalds as the official Olympic sponsor, it’s difficult to believe that Olympic athletes obtain success through regular physical training, diet, and discipline. But, the overwhelming commonality among successful athletes is self-control.

“I trained, a lot, a lot, a lot. No drink and no girls,” said Richard Bognar from Hungary, who finished sixth in the men’s double-trap shooting final.

Similarly, professionals who work in high-stress environments often forget that healthy eating and adequate sleep improve productivity. When your caseload seems too heavy to bear, it may be time to increase your calorie-count—learn from athletes and prepare for client meetings and court cases with proper meals, consistency in preparation, hard work, and rest.

“…the Chinese always win, and maybe some people think this not good for table tennis. I don’t think so. We always win because we work much harder than the others,” responds Chinese women’s table tennis coach Shi Zhihao to new Olympic rules that would restrict each country to two players (aimed to reduce China’s domination of the sport).

In the end, like the Chinese in table tennis, success is the result of time and effort spent to gain an expertise.

3. Fair Play.

The Olympics, like law, depends highly on fair play and ethics. Which is why, eight players from China were disqualified from Badminton for deliberately trying to lose matches to ensure a better draw.

“This is my last time competing. Goodbye Badminton World Federation, goodbye my beloved badminton. You have heartlessly shattered our dreams,” said China’s Yu Yang, bidding farewell to the sport.

It’s also why governing bodies in law, like the ABA, constantly produce ethics opinions to warn lawyers of potential pitfalls, like this one. Although technological advances (and performance-enhancing drugs) are improving, don’t be a dope. Forget the quick fix—such as juror contact during online research of social media sites—and go for fairly earned gold.

4. Good Attitudes.

Nobody’s smile is as infectious as recent Olympic gymnast all-around winner Gabby Douglas. Her coach, Liang Chow, also beamed after Douglas’ performance, saying, “Before, people weren’t sure about her mental toughness.”

“She demonstrated she can handle the toughest job. It was a wonderful performance under huge pressure.”

Undeniably, young girl gymnasts face a huge amount of pressure. Nonetheless, an optimistic attitude is contagious.

“I made a lot of sacrifices, but they all paid off,” Douglas said. “My mom was always telling me, ‘You can inspire a nation.’ I always thought of that as my motivation. I want to inspire people. If you’re having a hard time, never give up and always keep fighting.”

Positive reinforcement is the most productive type of support in professional sports or professional work environments. A good attitude is (literally) worth its weight in gold.

5. Team Support.

Finally, peer support is crucial to winning Olympic gold. Not just for the team events, but for the individual ones, too.

Swimming is frequently considered a solitary endeavor. But, as Olympic medalist Allison Schmitt points out, she never would have reached the podium without the encouragement of her teammate—ultimate Olympic Champion—Michael Phelps.

“(Phelps) has definitely helped me out a lot,” said Schmitt, who set an Olympic record to win the 200-meter freestyle.

“He has shown me the ropes in many ways in international swimming and Olympic trials—keeping me calm before my swim, saving my energy. At the same time, he’ll always be there at practice, if he sees me doing something wrong, if I just want to be like, ‘Michael, watch this finish.’ He’s always willing to watch it and help me out if he sees something wrong.”

Feedback and communication are equally important among teams. Support doesn’t simply imply blind encouragement, but it also bears the responsibility of righting wrongs as they occur.

So even if your average workday isn’t filmed in high-definition for public broadcast like the London Olympics, leave the office every day with the professional pride that it could have been.

-WB

 

The Risks of Social Media Use For Lawyers

Although many legal consulting companies advise law firms to make good use of free and accessible social media, such as Twitter, blogging, or social network sites. Some consider the practice to be more of a trap than trail to success.

Thomas J. Watson, senior vice president and director of communications at Wisconsin Lawyers Mutual Insurance Co., recently wrote an article for the Wisconsin Lawyer titled, “Lawyers and Social Media: What could possibly go wrong?”

According to Watson, “Potential hazards include losing control over your message, blurring professional and personal use, expending too much time and money on managing social media use, creating unrealistic client expectations, and making false or misleading communications about a lawyer’s services, not to mention the possibility of violating the rules of professional conduct.”

His article is full of sound professional advice, including, don’t talk about or to clients over social media, beware of the marketing-related Rules of Professional Conduct when writing online, and don’t give legal advice over the Internet.

In some sense, it’s common sense.

Of course, it’s natural to keep aware of conflicts of interest and to not engage in the unauthorized practice of law. Still, something about the anonymity of digital makes people forget about these daily professional conduct rules.

Also, the more software and technology used by your firm, the more necessary tools for confidentiality and protection, like an excellent IT Department, becomes.

Employees at your firm should properly secure its wireless network; update its antivirus software and build a firewall; and remember to remove metadata or password protect-sensitive email attachments.

But, are these risks—inherent in any online activity—so severe that they outweigh the benefits of using social media?

“Is fashion attorney Staci Riordan, perhaps the fastest woman associate to make equity partner at Fox Rothschild, a century old national law firm, advertising with her heavy use of Facebook and Twitter?” questions Kevin O’Keefe in his article “Is all use of social media subject to legal ethics rules?” on his blog.

The question seems rhetorical. And O’Keefe, author of Real Lawyers Have Blogs, believes social media is not about advertising, rather, it’s about building a conversation of trust between lawyers and their clients.

“Riordan, like many shrewd lawyers who truly understand relationships and reputation aren’t built by having separate online identities, uses Twitter and Facebook to network and engage with business leaders, other lawyers, civic leaders, and friends. Riordan knows networking to nurture relationships and establish trust with others so as to build a strong word of mouth reputation is the stuff life is made of for lawyers looking to grow their business and become better lawyers,” he writes.

Ultimately—like any great rivalry—O’Keefe and Watson want the same thing.

Both men want to watch the industry of law regain some of the reputation of honor and integrity it has lost over the years. And, both are eager to influence and advance their struggling profession.

As lawyer jokes become commonplace and the information highway makes pro se (and in-house) representation all that more accessible to Americans, law firms are seeking new outlets and tools for survival.

Using social media to keep up with the times has its risks. But, so does not using it. Embrace innovation.

If your firm still has concerns, consider hiring a consultant to guide you into the 21^st century instead of driving you astray.

 

-WB

 

C4CM offers an audio recording that explains: Social Media at Work: Bulletproof Policies that Minimize Legal and Financial Risks

Highly-Regulated U.S. Law Industry Reminds U.K. Firms To Keep Out: New York State Bar Rules On Ethics

Formal publications and informal publications, like this law blog, spend a predominant amount of time advocating for legal service innovation.

Clifford Winston, Robert W. Crandall, and Vikram Maheshri of the Brookings Institute suggest in their publication, First Thing We Do, Let’s Deregulate All the Lawyers. The authors claim entry barriers and restrictions combined with government-induced demand for lawyers drives up the prices for legal services, which then draws significant social costs, hampers innovation, misallocates the nation’s labor resources, and creates socially perverse incentives.

Winston and Crandall also contributed an op-ed to the Wall Street Journal calling for the immediate deregulation of the legal industry. They wrote:

“The reality is that many more people could offer various forms of legal services today at far lower prices if the American Bar Association (ABA) did not artificially restrict the number of lawyers through its accreditation of law schools—most states require individuals to graduate from such a school to take their bar exam—and by inducing states to bar legal services by non-lawyer-owned entities. It would be better to deregulate the provision of legal services. This would lower prices for clients and lead to more jobs.”

Amid countless lawsuits accusing law schools of misrepresenting employment statistics and a boom in online legal services, law school graduates are desperately seeking jobs, and clients seeking affordable counsel.

Both the Cato Institute and OpenMarket.org agree with the WSJ that deregulation is necessary.

“People can represent themselves in small-claims courts, which have simplified procedures, but in many states, such courts can hear only the tiniest legal claims, like those seeking less than $5,000,” states OpenMarket.org (via ATL).

“Every other U.S. industry that has been deregulated, from trucking to telephones, has lowered prices for consumers without sacrificing quality,” continue Winston and Crandall.

Foreign countries have also deregulated the law industry. Consider, for example, the U.K.

Law firms there can receive external investment—even through an IPO—and non-law firms can offer legal services without special legal accreditation.

The Legal Services Act, which passed in October, provides for new ownership structures in the U.S., but to date, no major U.K. law firm has taken advantage of it (via WSJ).

And, according to the Wall Street Journal and a recent ethics opinion by the New York State Bar, perhaps U.K. firms should continue to stay off U.S.-regulated soil. Here’s why.

The New York State Bar, which is the largest in the country with 77,000 members, recently ruled that New York lawyers can’t practice law in the state if they are part of U.K. law firm with non-lawyer owners.

“The committee considered this scenario: Lawyers licensed to practice in New York enter a business relationship with a U.K. firm that has non-lawyer owners and managers. The New York lawyers establish a New York office for the firm and represent New York clients. They don’t share confidential information with the non-lawyers and they abide by U.K. rules,” writes the WSJ Law Blog.

The New York State Bar ruled that the above scenario violates ethics rule that forbids a lawyer from practicing law for profit with an entity that includes a non-lawyer owner.

Although The American Bar Association is considering a tweak to its ethics rules, there is no end in sight. Despite the dire economic climate for lawyers, the U.S. is hesitant to propose any innovation that would deregulate the law industry.

FT has more on the ethics opinion here.

What’s the solution? To garner more business overseas and to exit this financial crisis, will U.S. states be forced to deregulate their law industry?

In today’s globalized world, a combination U.S.-U.K. law firm shows signs of potential success. But, for the moment, it looks like U.S. law firms will have to go it alone.

-WB

Does The Trial Of Stephen Glass Pose A Danger To The Ethical Standards Of Law?

In terms of professional requirements—long hours, teamwork, ethics—lawyers are frequently compared to physicians, pilots, or journalists.

But do the similarities transcend all?

Stephen Glass, for one, hopes the comparison between journalists and attorneys stops short. Glass would like to forget his transgressions in journalism in favor of a clean-slate career in law.

From 1996 to 1998, Glass faked all or parts of 42 articles for national magazines. His frauds were the basis for the 2003 film “Shattered Glass,” in which he acknowledged that his violation of journalistic standards for ethics was so severe that he would “never be welcomed within journalism, and rightly so,” quotes the San Francisco Chronicle.

Today, the 39-year-old is a law clerk for a firm in Beverly Hills. Glass passed the bar exam and applied for an attorney’s license in 2007, but the State Bar’s Committee of Bar Examiners rejected his application.

Can Glass be trusted again? The State Bar Committee seems to believe he can not.

Glass has since appealed to the independent State Bar Court, which ruled 2-1 in his favor this July. The majority found “overwhelming evidence of Glass’ reform and rehabilitation,” after 22 witnesses stepped up on his behalf to the stand.

Former editor of The New Republic for which Glass’ fabricated articles were published, Martin Peretz, told the court that Glass  “has learned, painfully, from his mistakes,” quotes the SF Chronicle.

In this case, other attorneys and potential clients are forced to ask, is there a point where rehabilitation and justice can truly meet?

After the bar examiners appealed and California’s high court voted last month to review the case, Glass awaits a hearing scheduled for November, according to Reuters.

Reuters’ journalist Jack Shafer weighed in heavily on the trial of Stephen Glass. Shafer wrote in detail about the discovery documents used in the trial, analyzing them with a contemptuous eye:

“If it weren’t for the paper trail, this decade-long struggle to become an attorney, with all of its emotional striptease and maudlin confessions, might be mistaken for one more Stephen Glass fabrication. Maybe, when it’s all over, he’ll write about that,” writes Shafer for Reuters.

How much should past legal transgressions count against a candidate in the field of law? How much should firms value the trait of reform in their lawyers over those attorneys who show an unviolated code of ethics?

Would your law firm hire Glass?

As the New Year approaches, not only is it a perfect time for resolutions, but it is also a time to take a good look at what greater goods your law firm can perpetuate in 2012. Ethics, regardless of your take on Glass, should remain a lawyer’s first priority in any court case.

Glass did not respond to any requests for comment by journalists. A move that seems to shows Glass learned well—in the least—from his current legal counsel.

-WB

Puppies and PR Strategies: Five Pitfalls Law Firms Should Avoid

Oscar Wilde once said, “Experience is simply the name we give our mistakes.”

While it’s a wonderful experience to learn from your mistakes, clients hire those law firms that avoid making them in the first place.

Of course, it’s safe to say nobody is perfect. That’s why firms often trust in a third party dedicated to mistake-prevention and mistake-correction: the public- relations (PR) agency.

Television is rife with PR disasters: Tom Cruise and the couch-jumping incident, John McCain and bailing on Letterman, Ellen’s puppy fiasco… Law firms, however, are hardly immune.

Consider, for example, the firm King & Spalding.

In May, the firm received a fair bit of bad press after it agreed to represent House Republicans in defending the Defense of Marriage Act (DOMA). After gay-rights groups protested, King & Spalding withdrew from the case—but without any definitive explanation. Amid much controversy, King & Spalding experienced a snowball effect in terms of averse consequences and bad PR.

First, former solicitor general and firm Partner, Paul Clement (the attorney who brought King & Spalding the case) resigned. Next, the NRA and Virginia attorney general Ken Cuccinelli—both clients of the firm—changed counsel.

Eventually, the dust settled on King & Spalding’s office politics. But, how much damage was done?

The following is a list of PR pitfalls—like King & Spalding’s—that your law firm can learn from to avoid succumbing to its own. Hopefully these errors in judgment will prevent your firm from being next in the negative, legal limelight.

1. Employing Hands-off PR Strategies. Though experts in their field, PR agencies should not shoulder all the responsibility and work involved in creating a positive image for your firm. Partners and associates must all chip in when it comes to managing the PR poker game.

After the New York Post broke the story regarding Worby Groner Edelman‘s marketing poster (and ploy) that used 9/11 imagery to advertise for plaintiffs harmed at Ground Zero, the firm referred reporters calling about the controversy to Barker/DZP—the agency in charge of the ad. The firm should have responded to critics directly. Although conceived in an office somewhere else in New York City, the image and reputation of the law firm and its attorneys is the one at stake, not the art directors.

Richard Levick, President of Levick Strategy Communications, writes of law firm PR strategy:

“Reporters are like stray cats –if you don’t feed them, they go to someone else’s door. Call them back first, even if it is to say that you can’t say anything. Reporters remember who calls them and who doesn’t. Not returning the journalist’s call  today, no matter what the reason, guarantees that you won’t get the call when you do want to be in the paper.”

Employing third-party consultants does not exempt an attorney from speaking to the press or being a model representative of their firm. A PR person does not substitute for a well-spoken (and sometimes apologetic) law partner.

2. Participating In Impromptu Interviews. Senior attorneys would never show up to a courtroom unprepared, so why would you do the same for interviews with the press?

Continuing on the 9/11 example, the band Blue never recovered from backlash resulting from comments made by band member Lee Ryan during an interview. He was reported saying,  “What about whales? They are ignoring animals that are more important,” among other insensitive statements, when asked about the events of September 11.

Lawyers are more poised than popstars. But, the point remains. Impromptu interviews to the press about a case can have disastrous consequences.

Implement a firm-wide policy that controls what lawyers are allowed to say to the press. This simultaneously controls what the press prints about your firm and its clients. Also, ask your PR agency to prep key law firm partners for difficult, public scenarios involving the media. Don’t forget, even an ill-prepared press statement can grossly misrepresent the voice of your firm.

3. Going On The Defensive. Managing your public image—like social media—is not fad. Both trends are here to stay. That’s why a PR strategy should become a permanent addition to your firm.

It’s tempting to outsource PR work only when there’s trouble. The key, however, is to prevent trouble in the first place.

Take, for example, Miley Cyrus’s PR people. After the underage singer posed in some racy photos by Annie Leibovitz for Vanity Fair, her PR company correctly issued a public apology to the many disgruntled fans (and parents of fans).

Nevertheless, Miley Cyrus’s family was present for the shoot and should have involved their PR reps far before the magazine was ever published. Printed material sets words and images in stone.

Richard Levick, advises:

“Law firms conducting press relations project-by-project are wasting their money. If Coca-Cola only engaged in publicity when they had a new formula, you would be drinking Pepsi. Publicity requires reach and repetition. That means lots of placements, lots of times. Getting press ‘every once in a while’’, has little value beyond soothing the ego. Publicity for law firms is about business development, not ego.”

Law firms should keep PR-agency opinion handy for both defensive and pre-emptive decisions.

4. Believing More Publicity Is Good Publicity. The fact is, more publicity does not equal good publicity.

The company Mutts & Moms can serve as a testimonial to that fact.

When Ellen DeGeneres adopted a puppy, Iggy, from Mutts & Moms, she had no idea the dog wouldn’t agree with her cats. So she gave Iggy to her hairdresser’s family. However, Mutts & Moms’ policy required Ellen to return the dog to it, and took aggressive measures to repossess Iggy.

Despite appearing in tears on her show, Ellen could not get Mutts & Moms to return Iggy to her hairdresser’s family. And, in turn, Mutts and Moms received thousands of scathing reviews and threats from furious Ellen fans. Now, opposed to “good service” and “cuddly puppies,” a Google search of Mutts & Moms leads to, “Mutts and Moms: Ellen Ruined Our Reputation.”

Lesson learned? Even when it’s non-standard practice, do what it takes to avoid negative publicity—within reason (see last pitfall).

5. Trusting In Total Denial. Finally, the strategy to “deny, deny, deny” is the same as “lie, lie, lie.”

Whatever ethical standards lawyers abide by in the courtroom, they should require in the press room.

-WB

Read more about the above celebrity PR incidents in “10 of the Biggest PR Blunders in Recent History,” here.

Governor General Chides Legal Profession: Tells Lawyers, Choose Side Of Justice

It is often said that we are our own worst critics.

And so Governor General David Johnston, former dean of law at the University of Western Ontario, said of lawyers—like himself—that they have failed in their duty to improve justice and serve the public good.

In a dynamic speech at the opening of the Canadian Bar Association’s annual meeting in Halifax on August 14, Johnston criticized the direction that the legal profession has taken and beseeched attorneys to make a change.

“We need a new model for professionalism in law,” Johnston supplicated the audience. “To borrow a saying from a sister profession: physician, heal thyself.”

Practitioners of law must abide by certain ethical and other standards of quality, but have, in recent times, neglected to do so, according to Johnston.

In particular, Johnston spoke out about the intense lag time of court cases. Court processing times are lengthy and case backlogs plentiful. Of efforts to reverse the trend in Ontario, Johnston said “the pace (of change) is woefully slow.”

In his speech, the sense of urgency is clear.

It’s easy to think, discuss, and even identify innovative ideas for the workplace. However, it’s hard to find the courage to implement them. Sometimes maintaining the status quo—especially for more conservative law firms—is an acceptable norm.

This lack of action, criminologists call a “court culture” of complacency—a culture that Johnston blames for aspects of the 2008 financial collapse.

Failure on Wall Street is just one example that Johnston singles out as a contributing factor to the collapse of trust between citizens and public institutions in Canada and democratic nations as a whole.

“How many lawyers ‘papered’ the deals that involved fraudulent statements of assets, liabilities, income and valuations?” he laments.

“How many lawyers ‘sounded the alarm’ about conflict of interest in the web of financial transactions and creative financial instruments?

“How many lawyers were silent in the face of a pattern of deregulation which has left the economy naked to excessive leverage, and which any thoughtful observer knew was bound to have its inevitable pendulum swing?”

These questions are an apt reminder to lawyers everywhere of their ethical and professional oath.

Johnston also chastised law firms for not accommodating young mothers, claiming firms had a propensity to “penalize those with a family,” a topical issue that drew applause from the audience.

Learning to manage work and home life is no longer an issue to be addressed by the professional, but by the profession. The legal industry must learn how to accommodate the modern family. And, to retain the best lawyers, that means firms must adjust in terms of competitive benefits for their employees.

“If we wish to avoid having change forced upon us, we must embrace new ideas.”

Embrace new ideas while reinforcing the old, such as, let justice be done.

-WB

 

Read more reactions on the Ottawa Citizen, “Forceful governor general tells lawyers, ‘Heal thyself’: In stinging rebuke, Johnston says it’s time legal profession regains sight of justice, public good.” By Richard Foot.

Cultural Misunderstanding? Native American Law Students Ethnicity Questioned By The ABA

St. Lawrence Day Massacre or Pueblo Revolt? Both occured on August 10, 1680. In fact, these titles represent two different perspectives on the same historical event.

On the one hand, “el Día de San Lorenzo,” or the St. Lawrence Day Massacre, commemorates the deaths of 400 Hispano settlers, including 300 women and children, and 21 friars who enhabited colonial Santa Fe and were killed during a massive American Indian attack.

On the other hand, the Pueblo Revolt is often touted as the First American Revolution against the invading Spanish–a fight in favor of freedom of religion and the preservation of the Pueblo Indian and other Native American culture.

“I personally would want to see our tragic history, or the tragic elements of our history, acknowledged,” President Obama told conventioneers at the Unity Convention in 2008.

“I consistently believe that when it comes to whether it’s Native Americans or African-American issues or reparations, the most important thing for the U.S. government to do is not just offer words, but offer deeds.”

Not only controversial holidays, but controversial legislation surrounds the special rights and benefits provided by the federal government to the 5 million American Indians and Alaska Natives residing in the U.S., or 1.6 percent of the total population, as of July 2009, according to the U.S. Census.

And now, the controversy has spread to Native American lawyers.

Between 1990 and 2000, the number of Native Americans who graduated from American Bar Association-accredited law schools was approximately 2,600, according to the ABA. During that same period, the number of Native American attorneys who practiced law in the U.S. increased by approximately 200, according to the U.S. Census. Wait a minute…

Either a large proportion of Native American lawyers are unpracticing, living outside the U.S., cleverly orchestrating a ruse to avoid the U.S. Census, or there are a few too many law students checking the Native American ethnicity box. At least, this is what the ABA believes explains this discrepancy.

Concerned these numbers represent a disturbing trend in law school admissions, the ABA’s House of Delegates approved on Monday a resolution that urges the Law School Admissions Council and ABA-approved law schools to require additional information from people who register for the Law School Admission Test and apply to law school as a Native American.

According to The National Law Journal, this type of of additional information could include information about tribal citizenship, tribal affiliation, or enrollment number. In the event applicants do not belong to a tribe recognized by the U.S. government, they can provide a “heritage statement” instead.

“While few people would indicate they were Asian-American or African-American on a law school application unless it is part of their identity, for some reason there is a wide level of comfort about self-identifying as Native American even though they are not in fact Native American,” wrote the ABA, as reported by The National Law Journal.

“This is particularly disconcerting given that being Native American is not just an ethnic identity, but is an actual citizenship in an Indian tribe or Nation which carries with it a formal tribal enrollment number, not unlike a social security number.”

If you or your clients have questions about government qualifications as a Native American, see http://www.benefits.gov. The Native American Rights Fund also provides useful information about legal assistant resources for Native Americans. Finally, law students who do decide to indicate their ethnicity as Native American should consider joining groups like the National Native American Law Student Association.

Each time you fill out an application, sign a membership, or apply for benefits, you’re partipating in a contract that is not only binding under the laws of this country, but also an essential part of its founding principals. So, with or without the requirement of additional information and evidence of your Native American status, a lawyer should always be aware of the ethical obligations of this profession and act accordingly.

Don’t add to the controversy, add, instead, to true American diversity.

-WB