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Law Firm Pricing (& Voting Day) Predictability: Using Alternative Fee Arrangements

The result of today’s vote is anybody’s guess. But, does the United States Electoral College have the power to change history?

The faithless elector—words that sound ominous. A faithless elector is s a member of the U.S. Electoral College who does not vote for the presidential or vice-presidential candidate for whom they had pledged to vote.

See, the U.S. Electoral College is a strange beast. As we all know, citizens of the U.S. do not actually elect the president or the vice president directly; instead, “electors” are chosen to pledge a vote for a particular candidate on behalf of their respective U.S. State residents every four years.

Electors in all states, with the exceptions of Maine and Nebraska, have been chosen to pledge votes on a “winner-take-all” basis since the 1880s. Under this method, all of a state’s electors vote for the candidate who wins the most votes in that state.

However, Maine and Nebraska use the “congressional district method”, which means each congressional district gets an elector to vote on its behalf and then two separate electors vote according to the statewide popular vote.

In the end, however, electors are often free to vote as they see fit without any consequence.

Georgia and Texas are two of 21 states without faithless elector laws. That means, there’s no penalty for voting against your statewide consensus. In addition, while the other 29 states (and D.C.) have such laws, no faithless elector has ever been prosecuted, according to the Archives and The Washington Post.

There have been several occasions where electors have broken their pledge to vote for a particular candidate. Although faithless electors have a small place in history, considering they are few and far between, they do have the power to change the outcome of an election.

Despite polling efforts, you might say this election is impossible—literally—to predict.

You can predict, however, firm fees for your clients. In fact, more and more clients, both large and small, are proactively asking for cost predictability, certainty, and transparency.

Law firms, for their part, can work toward creating a pricing strategy that goes beyond one-size-fits-all, and attracts more business through alternative fee arrangements.

Transparency is essential—whether in politics or business—where the devil is in the pricing details. Craft new policies that require your firm to share data with its clients about how your work is being allocated and billed.

These days, data analytics is an easy way to support pricing decisions (and delight clients with your tech-savvy sophistication). This will improve your firm efficiency, as well as client satisfaction.

To learn more, take the Center for Competitive Management’s webinar, “Utilizing Alternative Fee Arrangements for Greater Predictability & Client Satisfaction.

Like every (electoral) vote, every dollar counts for your client.

-WB

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Hurricane Forces Outside Your Door? Why Managers Should Embrace A Closed-Door Policy

Authorities in Florida and South Carolina are requiring the evacuation of hundreds of thousands of people today as Hurricane Matthew marches toward the U.S.

Yesterday, South Carolina Gov. Nikki Haley declared a state of emergency in anticipation of the storm. A state of emergency allows Haley to gather 1,800 members of the National Guard to help clear traffic lanes and direct highway traffic during the evacuation—not an overreaction considering just one year ago, heavy storms in South Carolina killed 17 people.

“The combination of a dangerous storm surge and the tide will cause normally dry areas near the coast to be flooded,” reports Reuters of the National Hurricane Center.

“There is a danger of life-threatening inundation.”

Tropical storm conditions are expected to reach parts of the Florida coast by early Thursday after intensifying to hurricane conditions, warns the National Hurricane Center. Hurricane Matthew had already sustained winds of 120 mph, which comprises a Category 3 hurricane, and is likely to strengthen soon.

“People have less than 24 hours to prepare,” Florida Gov. Rick Scott warned, reports USA Today. “Having a plan could be the difference between life and death.”

And although it’s hardly a life or death situation, law firm associates often feel flooded with deadlines and requests.

Sometimes—to avoid a storm of distractions at work—it is best to close up shop, board up your windows, and simply buckle down in your office.

For years, strategists and innovators touted the success of an open-door policy, claiming it makes management more accessible or employees more collaborative.

It has become routine for inner-office designs to be laid out in an open-plan scheme.

And while a culture of openness and accessibility—especially in the field of law, where its rigid hierarchical structure can breed favoritism—might improve productivity. There are other instances where a closed-door policy is the best one.

Take, for instance, Jordan Cohen’s story about a business trip to London, as described in the Harvard Business Review blog:

“Last Monday I took the red-eye to London. My week had been tightly scheduled months in advance, to ensure the most efficient use of my time on the ground once I landed. Arriving at Heathrow I whizzed through to the BA arrivals lounge to eat, shower and change in preparation for my morning’s meetings.

After my shower I opened my suitcase to get dressed. One problem: no suit pants. In fact: no lower-body covering of any kind, other than the rumpled jeans I’d just slept in.

The next 90 minutes were spent rescheduling that morning’s engagements, juggling the effect on meetings later in the week, and navigating the complex maze of gentleman’s clothing stores in Central London before emerging with a suitable pair of trousers.

This unexpected diversion to Jermyn Street really bugged me. I’m a frequent traveler — how could I have gotten on a transatlantic flight with no pants? What caused this unexpected absent-mindedness?

I reviewed Sunday afternoon’s chain of events. As I had been packing, I remembered that I was interrupted by a request from my daughter to help her with her homework. Twenty minutes of geometry later, I finished packing and zipped up my suitcase. My pants never made it in. While I traversed London, they hung on the back of my door where I’d left them, waiting to be packed.”

Mr. Cohen goes on to explain that interruptions—especially welcome distractions, like the one from his daughter—derail a person’s productivity.

It’s true that our daily lives are constantly battling the many throws of disruptive technology, cell phones, emails, Facebook status updates, RSS feed alerts, instant messaging, in-person visits, to name a few.

When you add them up, the time away from work is substantial. Not only that, returning to work after such distractions becomes more difficult. And, prone to error.

Mr. Cohen has come up with a few ways to minimize distractions, stay proactive at managing time, and increase his individual productivity. His suggestions can be found here, along with the rest of his article.

However, it’s possible to add one more idea to his distraction-minimizing list: Create a closed-door policy at work.

These days, most people frown upon a closed office door. In fact, disruptions have become such acceptable practice a closed door does not always deter visitors.

Nevertheless, it’s possible to recondition your coworkers to respect the closed-door. Start with a traditional “do not disturb” sign, or simply let it be known you expect one hour of uninterrupted work.

Don’t get swept away by office gossip and idle chit-chat. Even one hour a day—distraction free—will make a huge difference in your productivity.

So, ignore e-mail, put your phone on silent, and concentrate on a single task. In law, which deals with costly, time-sensitive, billable, high-stakes cases, there are definitely times when a closed-door policy—to avoid the hurricane forces outside—is the best one.

Need help coming up with other productivity policies in your law firm? Visit The Center for Competitive Management’s website for CLEs and webinars devoted to saving your firm time, money, and management headache.

-WB

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Win The Debate: Hillary’s (Or The Smart Woman’s) Guide To Office Politics & Achieving Your Career Goals

“PRESIDENCY, n. The greased pig in the field game of American politics,” as defined by Ambrose Bierce in The Devil’s Dictionary.

This week, following the U.S. presidential candidate debates, all eyes are on the prized pig. Few people (except Winston Churchill) would deny that politics is a game. And that’s just what authors Avinash Dixit and David McAdams try to explain in their most recent Harvard Business Review article, “Applying Game Theory to the Supreme Court Confirmation Fight.”

The article attempts to explain why—almost a year later—we still have no Supreme Court nominee to fill Justice Antonin Scalia’s seat.

“First, a quick reminder of how we got here. The death of Justice Antonin Scalia in February set off a political stalemate that has served as a sidebar to the presidential election campaign. Under the U.S. Constitution, the president nominates justices ‘by and with the advice and consent of the Senate.’”

“Yet within hours of Scalia’s passing, Senate majority leader Mitch McConnell vowed not to consider any nominee while President Obama remains in office,” reports the authors in the HBR.

So, when President Obama nominated Merrick Garland, a judge considered moderate compared to others on the nation’s highest court, nothing happened. Garland has been in nominee limbo ever since.

Part of the reason—Dixit and McAdams go on to say—is that both sides, Democrat and Republican, are playing a political game of “who will win the Senate seats.”

However, if Hillary Clinton wins the presidential election, and the Democrats control the Senate, there is a chance the nominee will be a judge even more liberal than Garland. This—to the Republicans—is the worst outcome.

Nevertheless, Republicans are reticent to go back on their stance; they will not approve Garland. Part out of overconfidence in winning the Senate and part out of the “sunk” costs of disagreeing for so long, Republicans are standing by their stubborn position.

“If Clinton wins the presidency and Republicans keep Senate control, she might prefer that Obama leave Garland as his nominee during Congress’s ‘lame duck’ session—that way she can avoid a nasty Supreme Court fight at the start of her first term,” the authors conclude.

“Unfortunately, if recent history is any guide, Republicans may actually relish the thought of dragging out the Supreme Court confirmation process into Clinton’s first term. If so, Republicans would prefer to continue blocking Garland’s nomination even after a Clinton win.”

There you have it. Politics as game where nobody gets the greased pig and nobody wins.

But, your firm doesn’t have to simulate these tactics in the office.

When competent people vie for a professional promotion, usually the one with political savvy wins. And when conflicts arise, the politically astute reconcile those differences. Why? Because they know how to get things done, and they know what to say, when to say it, and to whom.

Take, for example, the subtle art of self-promotion. Self-promotion involves telling managers, not colleagues, about value you bring to the company. Bragging is exaggerating this value with the sole purpose of appearing superior.

Trump’s tweet, “Sorry losers and haters, but my I.Q. is one of the highest -and you all know it! Please don’t feel so stupid or insecure, it’s not your fault,” is shameless bragging.

But, one of the more memorable lines from Clinton during the debate with Trump was, ‘“You criticize me for preparing for this debate,” Clinton said.

“And, yes, I did. Do you know what else I prepared for? I also prepared to be president.”

Passionate and prepared self-promotion, done properly, is important.

Studies show men tend to be more involved in office politics and regard them as a natural and normal part of organizational life. Women, on the other hand, often think of office politics as manipulative plotting or blatant bragging.

So, if women want to be successful they must demonstrate political intelligence. In fact, by learning to practice positive politics you can avoid potential pitfalls, increase your personal influence, and develop a career-enhancing game plan.

Take C4CM’s “Smart Woman’s Guide to Office Politics: How to Increase Your Influence & Achieve Your Career Goals,” on Friday, October 14th, 2016 from 11:00am to 12:15pm Eastern.

You will learn:

  • How to survive and thrive in a power hierarchy
  • Handle five different management personalities
  • Know if you’re committing political suicide
  • Special strategies for successfully working with executives

Leave the debates and games to Hillary and Trump. Vote in the election. Win in your career.

-WB

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Wage Gap Woes: The Smart Woman’s Guide To Confident, Assertive Leadership In Law Firms

Americans are told that for every dollar a man earns, a woman in the same job earns just 77 cents. But, a new bill signed in Massachusetts this year is paving the way for better female wages.

In August, Republican Governor Charlie Baker promoted equal pay for men and women doing substantially similar work by signing a law that prevents employers from requiring applicants to disclose salary history “as a condition of being interviewed, or as a condition of continuing to be considered for an offer of employment,” according to The Atlantic.

Imagine that—in the past—an employer asked you to disclose how much your earned at your previous job. If that salary was significantly below what the new employer was willing to pay, the employer might reconsider and offer a lower wage.

For women stuck in the wage gap, this type of strategic scenario would maintain income inequality between the sexes.

“Women can be tethered to past salaries in a way that cements lower wages in place,” said Jocelyn Frye, a senior fellow at think-tank, the Center for American Progress, to The Atlantic.

“This bill tries to eliminate that problem and get employers to think about what an equitable salary is for the job based on the value of the job, not what someone made in the past.”

Although this is a giant step forward in equality efforts for women, the nation as a whole, unfortunately, remains unconcerned.

The Senate continues to eschew the Paycheck Fairness Act. Why? Republicans argued that discrimination based on gender is already illegal, and feel their hands are tied to do anything more.

Nevertheless, cases of discrimination or sexual harassment are not declining.

Bloomberg Businessweek admitted that an unpaid intern that is not legally considered an employee, and thus cannot sue for sexual harassment in the workplace:

“This discrepancy’s not new: Unpaid interns aren’t covered by Title VII of the 1964 Civil Rights Act, and while local laws can protect them, New York’s state and city laws do not.” In many states, it seems the law does not favor female subordinate employees. But, life’s even harder on female bosses.

Only 4.6 percent of public companies have female CEOs.

“The United States, once a world leader in gender equality, now lags behind other similarly wealthy nations in women’s economic participation. In the two decades from 1990 to 2010, our country fell from having the sixth-highest rate of female labor-force participation among 22 Organisation for Economic Co-operation and Development, or OECD, countries to 17th on the list,” writes Michelle Patterson, Founder and President of The California Women’s Conference and President and CEO of Women Network.

An astounding 46 percent of Russia’s leadership roles are held by women, 24 percent in Europe, and 31 percent in Turkey. These numbers are significantly higher than North America’s mere 18 percent, according to Career Bright’s article on the marginalization of professional women.

On a list of 200 companies with a workforce of over 1,000 employees, a survey by Glassdoor found only 2 companies with female bosses ranked high on employee approval of CEOs. Forbes, who reported on the survey, asks pertinently: “Do We Hate Female Bosses?”

Well, do we?

Some blame confidence. Men are just more confident in leadership roles.

If that’s true, it’s not at all surprising why—given all the legal cards stacked against a women: Don’t look too attractive, don’t look too ugly. Look like a woman, act like a man… How could any woman balance such a heavy double standard?

But, if there’s one thing a woman in the workplace can do to be taken seriously, it’s speak up—more often and more assertively. Like this blog post. Like today at work.

Are you too nice, too modest or way too quiet when it comes to saying and getting what you want in the workplace? Do you assume the blame when things go wrong? And what about when things go right? Do you credit other people, good luck or circumstances for your success?

You’re not alone. In fact, a recent survey found that half of women managers admitted to feelings of self-doubt about their performance and career, but only 31 percent of men reported the same.

Condescending colleagues, gender bias, and stereotypes can make it hard for women to take credit when it’s due, or steer the company ship with confidence. But a woman’s actions, assertiveness and communication skills—or lack thereof—could also be sabotaging her career.

So, take The Center For Competitive Management’s webinar, “The Smart Woman’s Guide to Confident, Assertive Leadership.”

While it will likely take more time to convince lawmakers that effort and work ethic, not aesthetics and salary history, should take priority in the workplace, it doesn’t take much for a woman to ask for promotions, initiate salary negotiations, speak up at meetings, manage subordinates productively and successful manager, and master guiltless self-promotion with gusto.

-WB

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Charlotte Riots Remind Law Firm Managers To Quash Incivility In The Workplace

North Carolina is steeped with African American history. It’s the place where Harriet Jacobs, born in Edenton, NC, escaped life on a plantation and wrote one of the first narratives about slavery and the fight for freedom by slaves in the South.

Three hours west in Greensboro, NC, is the site where, in 1960, four university freshmen sat down at the “whites only” lunch counter and made a formidable stand against the laws of segregation.

Just one and half hours south is Charlotte, NC, where the Gantt Center preserves African-American art, history, and culture, including quilts from the Underground Railroad and textiles from West Africa (not to mention Harvey Gantt was Charlotte’s first African-American mayor).

But Charlotte, this very minute, can hardly remember the key role it played in the Civil Rights movement; not just in the Greensboro sit-in, but as recently as 2008, when the predominantly conservative Republican State of North Carolina voted Democrat, leading Barack Obama to the White House on a 0.32% margin of victory.

The struggle in North Carolina for African Americans is real. Black Americans in North Carolina face an unemployment rate nearly double than their white counterparts. In this majority rural, conservative area, black Americans remain a minority, economically and socially.

Today, in Charlotte, nobody has it right—not the police, for cherry-picking where and against whom they use deadly force; and not the people, for protesting violently when the U.S. Constitution allows for effective, peaceful alternatives.

A second night of police-protest rioting sent at least one civilian to critical condition and led the city of Charlotte to declare a state of emergency. Officers in riot gear used tear gas and flash grenades during a standoff with a violent crowd, who was protesting the fatal shooting of Keith Lamont Scott, a father of seven, outside his condominium complex, reports the NY Post.

Meanwhile, demonstrators are still smashing windows and defacing storefronts in downtown Charlotte.

“Violence as a way of achieving racial justice is both impractical and immoral,” spoke Martin Luther King Jr. during his Nobel Lecture on December 11, 1964.

It’s a shame we are only reminded once a year on January 16th of MLK’s wise words.

“I am not unmindful of the fact that violence often brings about momentary results. Nations have frequently won their independence in battle. But in spite of temporary victories, violence never brings permanent peace. It solves no social problem: it merely creates new and more complicated ones. Violence is impractical because it is a descending spiral ending in destruction for all. It is immoral because it seeks to humiliate the opponent rather than win his understanding: it seeks to annihilate rather than convert. Violence is immoral because it thrives on hatred rather than love. It destroys community and makes brotherhood impossible. It leaves society in monologue rather than dialogue. Violence ends up defeating itself. It creates bitterness in the survivors and brutality in the destroyers.”

It is a state of emergency for us all when we’ve forgotten the legal outlets for free speech and protest for which our forefathers already fought. It’s these laws upon which this nation was built and remains unique in the world.

Big or small, there’s no excuse for skirting the law.

As law firm managers, it’s even more important to remember and enforce the legal outlets for dealing with uncivil behavior.

According to the Wall Street Journal, as much as 96 percent of employees have been treated rudely at the office, and 50 percent say it happens at least once a week.

What’ s more alarming, 26% of employees say they’ve quit a job because of “a lack of civility.” Beyond losing talent, disrespectful, rude and offensive behavior carries a high price; it wreaks havoc on employee relationships and morale, diminishes collaboration, and chips away at your bottom-line.

Take the Center for Competitive Management’s webinar “Incivility at Work: Essential Strategies for Squashing Rude Behavior and Creating a More Productive, Positive Workplace.

This information-packed webinar will help you master the three A’ s you need to combat and transform negative, disrespectful behavior and make your workplace a happier, more productive place. You will learn practical steps to:

  • Assess the problem;
  • Address the instigators; and
  • Ax out the behavior once, and for all.

If only police brutality (and communicating the value of peaceful assembly) could be handled so easily…

 

-WB

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Divorce, Democrats & Distraction: Strategies For Regaining Concentration In The Workplace

Angelina Jolie files for divorce from Brad Pitt. Hints emerge that George H.W. Bush will vote for Clinton. NFL versus the national anthem.

The news today is enough to make your head spin. With so much going on in the world—serious or not so much—it can be hard to pay attention to work.

Luckily, according to a recent study, your brain is smart enough to compensate for concentration-breaking events. It turns out, when you are busy with a task that requires sight (say, lengthy doc review on a computer screen?) your brain reduces hearing so that you can focus.

“The brain is really clever, and helps us to concentrate on what we need to do. At the same time, it screens out distractions that are extraneous to the task. But the brain can’t cope with too many tasks: only one sense at a time can perform at its peak,” Jerker Rönnberg of Linköping University, professor of psychology with a focus on disability research, said to Science Daily.

Rönnberg and colleagues have investigated what happens in the brain when people are given a visual task, such as a student taking an exam or a person driving a car. The researchers were also studying how a person’s concentration changes when background noise increases.

Although findings show a high cognitive load in the form of a visual task impairs the brain’s response to sound in both the cortex and also in the parts of the brain that deal with emotion, there are other ways you can hone your concentration skills. One that don’t need scientific confirmation via a catscan.

First, ignore your e-mail. E-mail is the quickest way to lose your momentum on a task.

Instead, create a schedule for checking e-mail, like once every hour. This will give you an occasional, much-needed break from completing your more important projects.

Second, craft a To-Do list.

When you’re feeling overwhelmed by the sheer number of tasks at hand, your concentration starts to decline. It feels like too much to do in too little time.

Creating a to-do list is one of those basic, but still valuable tools for any professional. Create a to-do list for the day and for the week. If you can, assign dates to each task (you can modify them later).

Creating a to-do list will get you in the habit of writing things down, and it will also make it easier to focus on tackling one task at a time. Your reward? Crossing it off your list.

To-Do lists are also one of the many ways a lawyer can use Excel.

Finally, take a break—a physical break—when you feel your concentration waning.

According to an old Japanese study, a 15-minute nature-walk can drop stress hormones by 16 percent, blood pressure by 2 percent, and heart rate by 4 percent, reports Montana Public Radio. And, a recent study from 2015 suggests that the same health benefits you receive from a $20,000 raise can be experienced simply by living in a neighborhood surrounded by trees.

So, get up from your desk and get a small amount of physical activity. Although your workplace may be surrounded by aluminum trees, i.e., skyrise buildings, you can still take a walk about town for your health.

Plus, a 15-minute break outside the office will do a world of good by letting you forget today’s insane worldwide news.

-WB

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Don’t Get Trumped: How To Protect Attorney-Client Privileges During an Audit When Investigators Hold All The Cards

No company is immune to investigation by regulating bodies—especially U.S. Presidential candidates.

Today, CNN confirmed that New York Attorney General Eric Schneiderman’s office is investigating Donald Trump’s charitable foundation “to make sure it’s complying with the laws governing charities in New York.”

“We’ve inquired into it,” Schneiderman told CNN‘s Jake Tapper on “The Lead,” Tuesday.

“We’ve had correspondence with them. I didn’t make a big deal out of it or hold a press conference. But we have been looking into the Trump Foundation to make sure it’s complying with the laws governing charities in New York.”

This should come as no surprise after news sources reported that Trump has not contributed to his own foundation since 2008 and that has, instead, spent money from his charity on himself (via CNN).

The current investigation follows a recent fine, issued to the Trump Foundation by the IRS for $2,500, for making a $25,000 donation to a group supporting the campaign of Florida Attorney General Pam Bondi in 2013. Bondi’s office was considering opening an investigation into Trump University, although no formal investigation was ever opened, reports CNN.

Trump isn’t the only one in hot water these days. Another investigation has headlines boiling over. Wells Fargo’s unauthorized account creations and subsequent employee firings have quickly overwhelmed the news cycle.

And, Girard Gibbs Law Firm just announced they are investigating reports that Wells Fargo used customers’ private information to open as many as 1.5 million unwanted checking and savings accounts, and more than 500,000 credit cards without customers’ knowledge or consent, according to BusinessWire.

Although Wells Fargo announced a settlement with regulators last Thursday, this is likely not the first or last time the bank will face additional lawsuits on this matter, either from customers who were harmed or ex-employees who may have been forced to quit by the bank’s practices (via LA Times).

Like the Wells Fargo scandal, investigations into wrongdoing can come out of nowhere. All it takes is one disgruntled ex-employee or client—even political agenda—for a corporation to find itself in Wells Fargo’s (or Trump’s) position.

During such an event, a critical issue faced by in-house counsel is how to keep their communications privileged.

Courts require that corporations prove that communications and documents shared with in-house counsel are protected by the attorney-client privilege. If you’re unable to satisfy this burden, you could be required to produce confidential attorney-client communications in court.

If you’re unsure how to protect yourself and your firm, take The Center for Competitive Management’s webinar, “Protecting Attorney-Client Privileges During an Audit or Investigation.”

In it, counsel will learn best practices for guiding a company in protecting attorney-client privileges during an audit or investigation, and when negotiating a deal, such as:

  • Key legal issues surrounding the attorney-client privilege in investigations and audits
  • Who has the privilege
  • What privilege protects or how privilege can be lost
  • How privilege can be inadvertently waived
  • How to shield information
  • Advice on disclosure without waiving the company’s privileges
  • Complications that arise due to the dual nature of in-house counsels role
  • Privilege issues that arise from ‘non-attorney’ communications
  • How to segregate business and legal advice
  • Steps to take to maximize privilege protection
  • How foreign privilege laws affect privilege

Although the word “privilege” may, in theory, mean a special right, advantage, or immunity granted or available only to a particular person or group of people; in practice, your “privilege” may be taken away if your firm doesn’t follow best practices.

So, don’t leave your company open to scrutiny by the courts. Investigate your own in-house policies for attorney-client privileged communication and consider:

  • Conducting a risk assessment of your organization’s devices, including computers, tablets, mobile phones, USB drives, cloud storage, etc.;
  • Updating your encryption software, firewalls, antivirus software and other security, like password protection policies and circulate these policies to teams;
  • Educating your employees and clients about what is, and is not, protected by attorney-client privilege or simply by adding a disclaimer to documents;
  • Reminding employees and clients that e-mail is not always the safest communication tool for confidential information
  • Developing strategies for managing private internal communications, such as adding the words, “attorney-client privilege” to all e-male subject lines; and
  • Conducting in-person training regularly to ensure these best practices.

-WB

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