Hosted By: Porzio’s Women’s Initiative Network & The Women’s Networking Committee of ACC-NJ
Table of Contents Friday, November 22, 2019
Agenda
3
Ethical Parameters of Cybersecurity Investigations
4
GDPR and Ethical Considerations Related to Privacy
17
You’ve Been Served! Practical and Ethical Considerations in Serving and Responding to Subpoenas
34
Prepping vs. Coaching Witnesses – Walking the Ethical Line
52
Gender Non-Conformity in the Workplace: Managing Risk in a Changing Environment
69
Ask the Judges: Perspective from the Bench
97
Paying it Forward from the Inside: The In-House Pro Bono Experience
123
Presenter Profiles
145
Agenda 8:00 am
Breakfast & Networking
8:30 am
Welcome
8:35 am
Substantive Scramble Ethical Parameters of Cybersecurity Investigations Diane Fleming Averell
GDPR and Ethical Considerations Related to Privacy Deirdre R. Wheatley-Liss
You’ve Been Served! Practical and Ethical Considerations in Serving and Responding to Subpoenas Tanya Y. Shah
Prepping vs. Coaching Witnesses – Walking the Ethical Line Joan Bannan Harris
9:55 am
Table Top Scramble: Gender Non-Conformity in the Workplace: Managing Risk in a Changing Environment Pamela M. Kapsimalis, Kathryn K. Forman
10:45 am
Break
11:00 am
Ask the Judges: Perspective from the Bench Justice James H. Coleman, Jr. (ret.), Judge Maurice J. Gallipoli (ret.), Judge Alvin Weiss (ret.) Moderator: Kerri A. Wright
11:50 am
Paying it Forward from the Inside: The In-House Pro Bono Experience Michelle Molinaro Burke; Wendy Feldman, Prudential Insurance Company
12:15 pm
Closing Remarks Vito A. Gagliardi, Jr.
3
Ethical Parameters of Cybersecurity Investigations
Diane Fleming Averell Principal
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Professional Conduct 1.1 Competence
“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonable necessary for the representation.� 10
Professional Conduct 1.1
Technical Competence
“[t]o maintain the requisite knowledge and skill, a lawyer must keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.�
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Professional Conduct 8.4 Misconduct “It is professional misconduct for a lawyer to … (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
12
Professional Conduct 5.3 Responsibilities Regarding Nonlawyer Assistants “With respect to a nonlawyer employed or retained by or associated with a lawyer: …(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer.” 13
Is Public Information Fair Game? Is an Unrepresented Party’s Non-Public Information Fair Game? Is a Represented Party’s Non-Public Information Fair Game? 14
15
Thank you Diane Fleming Averell Principal
16
GDPR & Ethical Considerations Related to Privacy
Deirdre R. Wheatley-Liss Principal
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The Data Privacy Landscape is Changing • The General Data Protection Regulation (“GDPR”) changed the data privacy landscape and has triggered the proliferation of new laws in regions such as: • Brazil, China, and India. • US: CA, NY, HI, NV, MD, NM, and WA. • We now have a “crazy quilt” of different laws and regulations that govern the collection, use and disclosure of personal data. • Law departments with and without data privacy experts are working to understand these requirements and develop data privacy compliance programs. 18
General Data Protection Regulation (GDPR) Effective as of May 25, 2018 • EU residents have more control over their “personal data.” • Provides them with enhanced rights. • Applies to entities that:
• Are established within the EU; or • Are located outside of the EU if they offer goods or services to, or monitor the behavior of, EU data subjects (even for free).
m
Key Takeaway: The GDPR’s long reach means it may apply to your company if it processes the “personal data” of EU residents. 19
“Personal Data” • “Personal data” is any information relating to an identified or identifiable natural person (a “data subject”): • Broadly defined; industry-agnostic; • To process special categories of personal data, which include biometric and genetic data, and data concerning health (e.g., patient data, employee data), companies must comply with more stringent requirements. • Companies subject to GDPR must have a valid legal basis to “process” personal data. • Must be one of 6 valid bases set forth in GDPR.
20
Individual Rights • EU residents have an enhanced set of rights with regard to their data, including: • Right to Access - Can the data controller whether their personal data is being processed, where and for what purpose, and can request a copy of their personal data. • Right of Erasure - Can request erase of their personal data without undue delay. • Right of Data Portability - Can request that their personal data be transferred to other individuals and institutions in a commonly used format. 21
Individual Rights (cont.) • Businesses will need to develop processes to respond to these requests. Note: Some of these rights are not absolute and only apply in certain circumstances.
22
Sanctions • Substantial fines for non-compliance: •
Maximum fines will range from the higher of €10,000,000 or 2% of gross revenue to the higher of €20,000,000 or 4% of gross revenue (depending on the circumstances around, and the nature of, the violation).
• Tiered approach to fines: •
EXAMPLE: A company can be fined 2% for not having their records in order, failing to notify the supervising authority and data subject regarding a breach, etc.
23
Coming Soon…California Consumer Privacy Act (CCPA) • Effective on 1/1/2020; “GDPR Lite.” •
•
Attorney General’s enforcement powers likely to commence on July 1, 2020. Broadest definition of “Personal information” of any US privacy law: “Information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.”
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Coming Soon… CCPA (cont.) • Applies to for-profit businesses that collect and control CA residents’ personal information, and: • Have annual gross revenue of over $25 million; or • Receive or disclose the personal information of 50,000, or more CA residents, households, or devices on an annual basis; or • Derive 50% or more of their annual revenues from selling CA residents’ personal information. • Corporate affiliates can be swept in if they share common ownership and common branding with a covered company.
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CCPA: Key Requirements • Public Disclosures (website or privacy policy): description of CA consumer’s rights under CCPA, categories of personal information that are collected, sold or disclosed for business purposes over the last 12 months. • This means the privacy policy must be updated annually! • “Point of Collection” Disclosures: categories of personal information to be collected, purposes for which personal information will be used.
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CCPA: Key Requirements (cont.) • Consumer rights: - Know/Access. - Deletion. - Right to opt-out of sale. - Right to equal treatment. • Opt-in consent required to sell personal information of minors. • Limitations on third parties’ subsequent sale of personal information. • Financial incentives may be provided to consumers if businesses are permitted to collect, sell, or delete consumers’ personal information. m
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Penalties Under the CCPA • Civil penalties - up to $7,500 per violation. • California AG has the ability to impose. m
• Private right of action if a data breach of non-encrypted or non-redacted personal information occurs. - Up to $750 per consumer per incident. - The plaintiff’s bar is waiting! • Damages from class actions could be significant.
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ABA Rule 1.1 - Competence Client-Lawyer Relationship A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. • Maintaining competence: To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice.
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Initial Questions Related to Data Privacy • Have employees been trained on the applicable laws, rules and regulations, and company policies? • Do they understand the core requirements? • Can they spot issues and escalate as needed? • Has your organization mapped its data or developed a data inventory? • Can it locate personal data across various departments, IT systems, and paper resources? • Has it developed a workflow(s) to respond to subject requests? • Has it tested this workflow to see if the organization is able to respond within the requisite time frame? 30
Initial Questions Related to Data Privacy • Has your organization implemented “reasonable security measures” to protect the personal data? • Are these safeguards appropriate in light of the nature of the personal data? • Do you have an incident response plan to follow in the event of a breach? • Has your organization updated its policies, notices, and disclosures? • Has it addressed potential third party risks and contracts? • Due diligence process for vendors (e.g., questionnaire).
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The Time for Data Privacy Compliance is… Yesterday! Your Company’s Approach Should Reflect: • Company Operations and Internal Resources. • Nature of the Company’s Data. • Key Legal, Regulatory, and Industry Requirements. • Contractual Obligations. • Key Risks to Data. • Privacy Principles. 32
Thank you Deirdr e R. Wheat ley-Lis s
Principal
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You’ve Been Served! Practical and Ethical Considerations In Serving and Responding To Subpoenas Tanya Y. Shah Associate
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Subpoenas in New Jersey State and Federal Court The Basics
What is a Subpoena?
A subpoena is a document that orders a named individual to personally appear at a trial or hearing to: 1) give testimony (Subpoena Ad Testificandum) or 2) to produce documents or objects to be used at a trial or hearing as evidence (Subpoena Duces Tecum).
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Subpoenas in New Jersey State and Federal Court The Basics (cont.)
New Jersey Court Rule 1:9
New Jersey Court Rule 1:9 governs the issuance of subpoenas. Court Rule 1:9-1 specifically states that “a subpoena may be issued by the clerk of the court or by an attorney or party in the name of the clerk.�
Federal Rule 45
Subpoenas served in federal court matters are governed by Federal Rule of Civil Procedure 45. The jurisdictional reach and procedural requirements vary slightly in federal matters.
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My Company/Client Received a Subpoena - Now What? 1
Review the Contents
2
Inform the Proper Parties
What does the Subpoena seek? Does it comply with the legal standards set forth in the New Jersey Court Rules (or equivalent state/federal authority)? Immediately put the proper individuals on notice: In-house or outside counsel? Does the Subpoena implicate a particular individual or group within your organization? Is a legal hold notice necessary?
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My Company/Client Received a Subpoena Now What? (cont.) 3
What specifically is counsel seeking? Will additional time be needed to collect and serve documents? Is the information subject to privilege?
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Confidentiality Orders Proprietary and Confidential Information
In some instances, the Subpoena may seek information deemed to be private, confidential, proprietary, or contain trade secrets. It is prudent to consider a confidentiality order on consent of all parties, prior to disclosure of documents.
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What Should Be Included in a Confidentiality or Protective Order? Designation of Confidential Materials Attorneys’ Eyes Only; Privileges and Objections. Prohibition Against Use for Business or Competitive Purpose. Handling and Destruction of Materials Use at Trial, Inadvertent Disclosure.
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Objecting to a Subpoena – What Are My Options? • Subpoenas that seek information that can be deemed vague, unduly burdensome, irrelevant, and/or not limited in time or scope can potentially be subject to objections, or motion practice.
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Objecting to a Subpoena – What Are My Options? • Options to deal with objectionable subpoenas include: • Work it out with the requesting party - can we come to a resolution without resorting to judicial intervention? • Partially respond to Subpoena and clearly state your objection to documents or information that are withheld. • Motion to Quash. • Contempt.
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Motions to Quash Under NJ State Law
Applicable NJ Court Rules on Obtaining and Objecting to Discovery
R. 1:9-2 A subpoena or, in a civil action, a notice in lieu of subpoena as authorized by R. 1:9-1 may require production of books, papers, documents, electronically stored information, or other objects designated therein. The court on motion made promptly may quash or modify the subpoena or notice if compliance would be unreasonable or oppressive and, in a civil action, may condition denial of the motion upon the advancement by the person in whose behalf the subpoena or notice is issued of the reasonable cost of producing the objects subpoenaed. [...]
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Motions to Quash Under NJ State Law
Applicable NJ Court Rules on Obtaining and Objecting to Discovery
R. 4:10-2(a) Pursuant to R. 4:10-2(a), parties may obtain discovery regarding any matter not privileged, which is relevant to the pending action. As with other discovery, a subpoena seeking testimony and document production must be relevant to the matters at issue in a given case, and thus rules of discovery require “that the information sought from the nonparty witness be ‘reasonably calculated to lead to the discovery of admissible evidence.”’ In re Napp Technologies. Inc. Litigation, 338 N.J. Super. 176, 191 (2000) (quoting R. 4:10-2).
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Motions to Quash Under NJ State Law
Applicable NJ Court Rules on Obtaining and Objecting to Discovery
R. 4:10-3
Upon motion by a party or by the person from whom discovery is being sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense‌
Factors to be Considered Nature of the lawsuit, privileged information, burden and expense, whether party seeking information already has it.
45
Ethical Considerations PPI and ESI Protected Personal Information and Electronically Stored Information.
Potential Conflicts
Attorney-Client Communications.
Continuing Obligations Careful Review of What is Required.
46
The Uniform Interstate Depositions and Discovery Act (UIDDA) NJ Adopted UIDDA on September 1, 2014 R. 4:11-4(b)
Pursuant to the new rule, R. 4:11-4(b), an out-of-state attorney can either file the foreign subpoena, along with a NJ subpoena, with the clerk of the court, and ask the clerk to issue a subpoena or send it to a NJ attorney who can issue the subpoena. If the out-of-state attorney decides to use the clerk to issue the subpoena, there is a filing fee to be paid. It would be filed with the clerk in the county where the discovery is sought (i.e., typically where the witness resides or where the entity subpoenaed is located). 47
The Uniform Interstate Depositions and Discovery Act (UIDDA) NJ Adopted UIDDA on September 1, 2014 R. 4:11-4(b) (cont.)
However, if the out-of-state attorney uses a NJ lawyer, then the subpoena is not filed with the clerk. The foreign subpoena and the NJ subpoena would simply be sent to the NJ lawyer who can issue the subpoena. Our court rules permit either a clerk of the court or a NJ lawyer to sign a subpoena. There is no longer a need for an order prior to the issuance of a subpoena, regardless of whether the clerk issues the subpoena or a NJ attorney issues the subpoena. 48
The Future of Subpoenas and the Rules and Authority Governing Them What changes do we see to federal and state authorities regulating the procedures and use of subpoenas? 49
Message to Send Clients: I’ve Got 99 Problems, But a Subpoena, Ain’t One.
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Thank you Tanya Y. Shah Associate
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Prepping vs. Coaching Witnesses: Walking the Ethical Line
Joan B. Harris Counsel
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RPC 1.3 Diligence A lawyer shall act with reasonable diligence and promptness in representing a client.
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RPC 3.3 Candor Toward the Tribunal (a) A lawyer shall not knowingly: 1) make a false statement of material fact or law to a tribunal; 2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting an illegal, criminal or fraudulent act by the client; 3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; 4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures; or 54
RPC 3.3 Candor Toward the Tribunal
(cont.)
(5) fail to disclose to the tribunal a material fact knowing that the omission is reasonably certain to mislead the tribunal, except that it shall not be a breach of this rule if the disclosure is protected by a recognized privilege or is otherwise prohibited by law. (b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by RPC 1.6. (c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false. (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all relevant facts known to the lawyer that should be disclosed to permit the tribunal to make an informed decision, whether or not the facts are adverse. 55
RPC 3.4 Fairness to Opposing Party and Counsel A lawyer shall not:
a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value, or counsel or assist another person to do any such act; b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; 56
RPC 3.4 Fairness to Opposing Party and Counsel A lawyer shall not: e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or
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RPC 3.4 Fairness to Opposing Party and Counsel A lawyer shall not: f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information. g) present, participate in presenting, or threaten to present criminal charges to obtain an improper advantage in a civil matter.
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RPC 4.1 Truthfulness in Statements to Others (a)In representing a client, a lawyer shall not knowingly: 1) make a false statement of material fact or law to a third person; or 2) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client. (b)The duties stated in this Rule apply even if compliance requires disclosure of information otherwise protected by RPC 1.6. 59
Applying the Rules to Witness Preparation and Avoiding Improper Coaching Professional responsibility requires an attorney to prepare a witness, whether a party, fact witness or expert, for their testimony at deposition and at trial. A total lack of preparation or over-preparation that crosses the line to witness coaching not only places your client at peril, but it likely places you before the Office of Attorneys Ethics. Applying the RPCs to witness preparation requires attorneys to exercise diligence and candor. 60
Best Practices – Diligence • Review the facts known to the witness. • Plan to meet well ahead of the deposition or trial. • Schedule at least two preparation meetings if possible. • If you are in-house counsel determine whether your presence at preparation meetings will be helpful (e.g., provide support; help “control”; assess witness) or hurtful (e.g., cause anxiety, serve as distraction). 61
Best Practices: Candor • Save the “lecture” until after you learn the facts. • Emphasize your expectation that the witness testifies honestly and the importance of his/her doing so. • Re-emphasize the above – reassure and build confidence.
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Section 116 of The Restatement (Third) of the Law Governing Lawyers (2000) Also provides guidance on how diligence and candor can be achieved: • Invite the witness to provide truthful testimony favorable to the lawyer’s client. • Discuss the role of the witness and effective courtroom demeanor. • Discuss the witness’ recollection and probable testimony. • Let the witness know of conflicting evidence or testimony that will be presented and ask the witness to reconsider his/her recollection or recounting of events in that light. 63
Section 116 of The Restatement (Third) of the Law Governing Lawyers (2000) (cont.) Also provides guidance on how diligence and candor can be achieved: • Discuss the applicability of law to the events in issue. • Review the factual context into which the witness’ observations or opinions will fit. • Review documents or other physical evidence that may be introduced. • Discuss probable lines of hostile cross-examination that the witness should be prepared to meet. 64
Section 116 of The Restatement (Third) of the Law Governing Lawyers (2000) (cont.) Also provides guidance on how diligence and candor can be achieved: • Preparation may include rehearsal of testimony. • Lawyer may suggest choice of words that might be employed to make the witness’ meaning clear. • Lawyer may not assist the witness to testify falsely as to a material fact.
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Crossing the Line • Encourage dishonesty – lie or conceal harmful facts (find a way to make “bad” facts work). • Draft a “script” or list of phrases to say (or avoid). • Rework facts. • Create memory or an inducement to testify falsely.
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Crossing the Line • Instruct a witness to testify they “don’t recall” to avoid admitting “bad” facts. • Suggest an answer to your witness during cross-examination (e.g., head nod). • Suggest what a witness’ testimony should be if they don’t recall facts.
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Thank you Joan B. Harris Counsel
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Gender Non-Conformity in the Workplace: Managing Risk in a Changing Environment
Pamela M. Kapsimalis Kathr yn K. Forman
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L
Lesbian
G
Gay
B
T
Q
Bisexual Transgender Questioning
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• Estimated 11.3 million adults in US Identify as LGBTQ. (Forbes) • Estimated 1.4 million adults identify as transgender. (Reuters) • Does not reflect minors, people in transition & those who don’t self-identify. • US Census Bureau; noninclusive?
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• Glaad (gay & lesbian alliance against defamation). • New study in November. • % of regularly seen LGBTQ actors on prime TV has reached all time high – 10.2%, expecting to be 20% by 2025.
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The Culture is Changing and So Should the Workplace‌
National Benchmarking Survey: 407 major employers earned 100%
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• INJUSTICE AT EVERY TURN – Survey by The National Center for Transgender Equality. • 90% of transgender employees surveyed experienced harassment, mistreatment or discrimination on the job.
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93% of Fortune 500
companies have nondiscrimination policies that include sexual orientation.
49% include domestic partner benefits.
62% include transgender benefits.
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Has the Law Caught Up With the Facts?
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What is the current state of the law governing employment protections for transgender individuals? 1 New Jersey
The NJ Law Against Discrimination unequivocally prohibits employment discrimination on the basis of “gender identity or expression.� See N.J.S.A. 10:5-12.
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What is the current state of the law governing employment protections for transgender individuals? (cont.) United States
2 Three cases are pending in the US
Supreme Court on whether Title VII prohibits discrimination on the basis of sexual orientation and/or gender identity.
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What is the current state of the law governing employment protections for transgender individuals? (cont.) 3 Model ABA Rule 8.4(g)
It is professional misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of . . . gender identity . . . [.]� 81
Title VII of the US Civil Rights Act of 1964 “It shall be an unlawful employment practice for an employer – (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; 82
Title VII of the US Civil Rights Act of 1964 (cont.) 2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). 83
Pending Cases
Argued October 8, 2019; not yet decided.
Bostock v. Clayton County Georgia, 17-1618 Altitude Express, Inc. v. Zarda, 171623 R.G. and G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, 18-107 84
“9/10 TIMES THE EMPLOYER THINKS THEY HAVE DONE ENOUGH, WHEN THEY REALLY HAVEN’T.”
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So What is Enough?
How do you engage in best practices to be a “best-in-class employer�? 86
Learn to evaluate the workplace Gender inclusive best practices Begin a transition plan Train and educate Quality culture 87
Learn to Evaluate the Workplace • Equal Employment Opportunity (EEO) statement. • Gender identity and/or expression.
• Workplace Review Form.
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Gender Inclusive Best Practices • Create gender inclusive practices across the organization. • Recruiting Process • Onboarding process. • Facilities by gender identity. • Privacy in locker rooms. • Gender neutral dress code. • Data Privacy
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Begin a Gender Transition Plan • Adopt written guidelines. • Who is in charge of helping a transitioning employee? • What are the procedures for implementing transition-related changes? • How will managers/co-workers be trained for the transition?
• Create hotlines and employee assistance programs. • Review insurance plan for transition related care.
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raining and Education • Create integrated training programs tailored to each level of the organization. • Provide real examples of appropriate and inappropriate behavior. • Evaluate the workplace climate and take steps to make it more welcoming. • Educate managers and HR team to “ask the questions.”
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uality Culture • Near Tolerance vs. Attempted Acceptance. • Respond to Employee Concerns. • Listen to the employee’s concerns – privacy or safety? • Refocus behavior to what is appropriate. • Reinforce company values of respect for all employees. • Remind employees of the company’s policies.
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uality Culture (cont.) • Become a pro-active employer. • Clear guidance regarding workplace behavior. • Consequences for failure to comply with non-discrimination policies regarding gender identity. • Commit to diversity and inclusion. • Track the initiatives of the LGBTQ community and stay current!
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Scenario One:
Scenario Two:
The Discretion Dilemma
Pronouns and Preferences
Scenario Three:
Scenario Four:
Addressing Awkward Andy
Locker Room Logistics
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President Obama: “It doesn’t make much sense, but today in America, millions of our fellow citizens wake up and go to work with the awareness that they could lose their job, not because of anything they do or fail to do, but because of who they are – lesbian, gay, bisexual, transgender. And that’s wrong.” 95
Thank you Pamela M. Kapsimalis Kathr yn K. Forman
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Ask the Judges: Perspective from the Bench Justice James H. Coleman, Jr. Judge Maurice J. Gallipoli Judge Alvin Weiss Kerri A. Wright Thank-you Thomas J. Reilly for presentation assistance.
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Smith-Brown v. Ulta Beauty, Inc., 2019 WL 2644243 (N.D. Ill. June 27, 2019)
• The case concerned Ulta's General Counsel, who began an investigation of reports that Ulta was reselling returned products. • In a later class-action lawsuit relating to the alleged reselling, the plaintiffs sought production of several emails related to the investigation, claiming they were for public-relations, not legal, purposes. 98
99
Privileged? Yes. • The court stated that the proper test should be to determine whether "obtaining or providing legal advice [was] a primary purpose of the communication, meaning one of the significant purposes of the communication."
100
Privileged? (cont.) The Court held that the emails were privileged. • The court based its decision on the D.C. Circuit case of In re Kellogg Brown & Root, 756 F.3d 754 (D.C. Cir. 2014), in which the court stated that the proper test should be determining whether "obtaining or providing legal advice [was] a primary purpose of the communication, meaning one of the significant purposes of the communication." 101
Sherman v. Berkadia Commercial Mortgage, LLC, 2018 WL 4300322 (E.D. Mo. Sept. 10, 2018) • In-house counsel for Berkadia retained outside counsel after allegations that Berkadia had falsely certified compliance with HUD regulations. • Based on outside counsel’s work, Berkadia’s in-house counsel drafted a memo about the investigation and important underlying events. 102
Sherman v. Berkadia Commercial Mortgage, LLC, 2018 WL 4300322 (E.D. Mo. Sept. 10, 2018) (cont.) • In-house counsel then prepared a second memo that summarized outside counsel’s investigation, but left out certain key details, and disclosed this second memo to HUD. • In an employee’s anti-retaliation lawsuit under the False Claims Act, the employee claimed that Berkadia’s disclosure of the second memo waived the privilege over the in-house lawyer’s original memo summarizing the investigation.
103
104
Privileged? No. • The court invoked the principles of the fairness doctrine, which states that “a party should not be able to make use of privileged information as a sword when it is advantageous for the privilege holder[,] and then as a shield.” • The court found that Berkadia waived the privilege over the in-house lawyer’s memo, and ordered the company to produce the sections of the original memo that disclosed interviews with Berkadia’s employees. .
105
Smith v. The Technology House, Ltd., 2019
WL 2746868 (Ohio Ct. App. June 28, 2019)
• Technology House’s in-house counsel began an investigation of an employee's claim that she was sexually harassed by a coworker. • In-house counsel interviewed the employee who made the accusations. At one point during the interview, the employee excused herself, contacted her lawyer, and then returned to the meeting and informed in-house counsel that she was represented by an attorney.
106
Smith v. The Technology House, Ltd., 2019
WL 2746868 (Ohio Ct. App. June 28, 2019) (cont.)
• The interview continued for an hour thereafter and was recorded by in-house counsel. • In a subsequent sexual-harassment lawsuit, the employee moved to compel production of her recorded interview. • Technology House objected, claiming that its lawyer conducted the investigation to provide it with legal advice, and that the interviews were privileged.
107
108
Privileged? No. • The court determined that although the plaintiff was an employee at the time of her interview, Technology House knew before the interview began that she could file suit. Moreover, she told the interviewing lawyer that she retained counsel. • The court recognized, however, that the work-product doctrine protected documents relating to the lawyer’s own notes and assessments of the interview.
109
Privileged? No. (cont.) • The court left open the question of whether in-house counsel had violated Model Rule 4.2, which prohibits a lawyer from talking with an individual represented by counsel.
110
R.P.C. 4.2 “[I]n representing a client, a lawyer shall not communicate about the subject of the representation with the person the lawyer knows to be represented by another lawyer in the matter.�
111
Olsen v. Owners Ins. Co., 2019 WL 2502201 (D. Colo. June 17, 2019)
After bringing suit for injuries relating to a car accident, Olsen 1 turned to his UIM carrier, Owners, for additional funds. Nicolas Zeman adjusted the UIM claim for Owners, and 2 communicated frequently with Owner’s in-house counsel about various claim-related issues. Olsen later filed a badfaith claim against Owners and requested Zeman’s claims file. Owners objected to providing documents exchanged 3 between Zeman and in-house counsel on privilege and workproduct grounds. 112
113
Privileged? No. • The court held that, “in the context of insurance claims and investigations, not every document drafted by counsel or every communication with counsel” is privileged. • The court added that, “typically, claims investigations arising in the first-party context … are made in the ordinary course of business and are discoverable.” Moreover, “the roles of claims handler and attorney are not mutually exclusive,” and “the mere fact that an attorney is involved in a communication or drafting does not automatically render that communication or document” privileged. 114
Privileged? No. (cont.) • Moreover, the privilege does not apply if the insurer’s in-house attorney communicates “in a manner consistent with a claims adjuster.” The court added that the privilege could not apply categorically to all attorneyadjustor communications because of the risk of "bad faith claims handling."
115
BouSamra v. Excela Health, 2017
WL 3046915 (Pa. Ct. App. July 19, 2017) The dispute arose from underlying litigation between Excela and a cardiology practice group over patient referrals and whether the cardiologists conducted unnecessary medical procedures.
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BouSamra v. Excela Health, 2017
WL 3046915 (Pa. Ct. App. July 19, 2017) Excela retained outside counsel in connection with the matter and hired the Jarrard PR firm “to aid in publicizing” the cardiologists' purported use of unnecessary medical procedures. During all of this activity, Excela’s outside counsel sent Excela’s general counsel an email containing legal advice. The general counsel then forwarded the email to certain employees and a Jarrard executive. The Jarrard executive in turn forwarded the email to her several of her colleagues. 117
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Privileged? No. •The court ruled that Excela’s general counsel waived the attorney-client privilege when he forwarded his outside counsel’s email to Jarrard. •In doing so, the court rejected the Kovel doctrine - which applies the privilege to communications with non-lawyers where such communications are necessary to assist the lawyer in providing legal advice to the client.
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Privileged? No. (cont.) •The court held that the Kovel doctrine did not apply because “Jarrard was uninvolved in the legal issue in question.” •The court also rejected Excela's argument that Jarrard was the "functional equivalent of an employee," finding that Jarrard was essentially a crisis-manager, worked completely independent of Excela, and was not involved in any of the strategic decisions relating to the suit.
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Privileged? No. (cont.) • The court also held that the general counsel had waived any related work product protections by forwarding the legal-advice email to Jarrard.
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Justice James H. Coleman, Jr. Judge Maurice J. Gallipoli Judge Alvin Weiss Kerri A. Wright
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Paying it Forward from the Inside: The In-House Pro Bono Experience
Michelle Molinaro Burke
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The Increasing Need for Pro Bono Services 1
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The ABA has concluded that “in some jurisdictions, more than eighty percent of litigants in poverty are unrepresented in matters involving basic life needs.� 1 in 4 people in NJ qualify for pro bono legal services. Fewer than 1 in 6 receive assistance from a lawyer when needed. In NY, 95% of litigants in family court are unrepresented. 124
Strength in Numbers •
81% of lawyers have done pro bono work.
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52% provided pro bono services in 2016.
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In 2016, lawyers committed an average of 38.9 hours.
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1 in 5 has never done pro bono.
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It is Our Ethical Obligation ABA Model Rules of Professional Conduct, Rule 6.1, Voluntary Pro Bono Public Service Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year.
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New Jersey RPC 6.1 Every lawyer has a professional responsibility to render public interest legal service.
New York RPC 6.1 Every lawyer should aspire to provide at least 50 hours of pro bono services each year to poor persons.
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Not Admitted to Your State’s Bar? No Problem! • Many states allow non-locally licensed lawyers to register to provide pro bono services where they live (e.g., New Jersey, California, Maryland). • 15 states have reduced or eliminated licensing and registration requirements for pro bono work (e.g., New York, Illinois). • CPBO “Summary of Multijurisdictional Practice Rules by State” including pro bono provisions available at www.cpbo.org – MJPguide. 128
Benefits Seen Across the Board “In-house legal departments that do pro bono work are more highly engaged. They bring passion and purpose to these efforts, it’s personally fun and rewarding to work with others on something different and meaningful, and it builds esprit de corps.” - Ivan Fong, SVP Legal Affairs and General Counsel, 3M Company 129
Benefits Seen Across the Board “I had not served on a nonprofit board before. I do corporate governance, but actually serving on the board [of Central Legal de la Raza, Oakland, CA] has helped me see what it’s like in the boardroom, and I’ve been able to apply my day job to volunteering, which is really fulfilling.” - Stephanie Tang Corporate Governance Attorney The Clorox Company 130
Pro Bono Opportunities • • • • • • • • • • • • •
Immigration Domestic Violence Veterans Benefits Expungements Wills / Healthcare Proxy Landlord/ Tenant Family Matters Consumer Issues Social Security / SSI Criminal Tax Assistance Clinics Partnerships with Firms 131
How do we get started?
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Garner Employer Support Developing the Business Case: 1. Community/Customer Benefits 2. Positive Media Attention 3. Retaining/Recruiting Legal Talent 4. Internal Training and Networking Opportunities
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Address Potential Conflicts • Ensure fit with corporate objectives and aims. • Establish a process for identifying conflicts. • Search adverse parties against lists of company customers, employees, partners, and leaders.
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Don’t We Need Malpractice Insurance? • Sometimes, corporate general indemnification or corporate insurance doesn’t cover pro bono. • Obtain pro bono coverage from existing insurer, a legal aid partner, partnering law firm’s policy, endorsements to D&O or E&O policies. • Purchase pro bono policy from National Legal Aid and Defender Association.
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Key Ethical Rules 1
RPC 1.1 Competence
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RPC 1.4 Communication
RPC 1.2 Scope of Representation 136
RPC 1.1 Competence A lawyer shall not: a) Handle or neglect a matter entrusted to the lawyer in such manner that the lawyer's conduct constitutes gross negligence. b) Exhibit a pattern of negligence or neglect in the lawyer's handling of legal matters generally. • Madden v. Delran, 126 N.J. 591 (1992).
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RPC 1.2 Scope of Representation •
A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
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Limited scope opportunities through walk-in clinics and hotlines.
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Use a limited scope engagement letter that clearly states what the lawyer will, and will not, do, and identifies risks of limited scope representation. 138
RPC 1.3 Communication (a) A lawyer shall fully inform a prospective client of how, when, and where the client may communicate with the lawyer. (b) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
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RPC 1.3 Communication (cont.) c) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. d) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall advise the client of the relevant limitations on the lawyer's conduct.
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In House Pro Bono Resources Corporate Pro Bono (CPBO) website: • The Business Case for In-House Pro Bono: www.cpbo.org/businesscase • Pro Bono Development Guide: How to Start an In-House Pro Bono Program: www.cpbo.org/getstarted • Best Practices Profiles: www.cpbo.org/resources/best-practiceprofiles/ • Guide to Multijurisdictional Practice Rules: www.cpbo.org/MJPGuide • Professional Liability Insurance for In-House Pro Bono: www.cpbo.org/insurance 141
In House Pro Bono Resources Pro Bono Opportunities and Ideas: • CPBO Clinic in a Box Program: www.cpbo.org/initiatives/clinic-in-a-box/ • Pro Bono Marketplace of Ideas: www.cpbo.org/Marketplace Benchmarking In-House Pro Bono: • 2016 Benchmarking Survey Report: www.cpbo.org/benchmarking2016 • The Corporate Pro Bono Challenge Initiative: www.cpbo.org/cpbo-challenge
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In House Pro Bono Resources ABA Standing Committee on Pro Bono & Public Service Corporate Counsel website: • www.americanbar.org/groups/probono_public_service/resources/p ro_bono_role/corporate_counsel.html New Jersey Judiciary Pro Bono Training Guides: • https://www.njcourts.gov/attorneys/probono.html
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Thank you Michelle Molinaro Burke Counsel
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Presenters
Diane Fleming Averell Principal dfaverell@pbnlaw.com 973-889-4150
Michelle Molinaro Burke Counsel mmburke@pbnlaw.com 973-889-4330
Diane handles business-to-business disputes and defends personal injury claims on behalf of publicly traded companies, privately held corporations, and family-owned enterprises. Representing manufacturing companies, Diane has defended UCC and product liability claims related to a wide range of products, including but not limited to prescription and over-the-counter drugs, industrial chemicals and minerals, petroleum products, automotive parts, trucking equipment, industrial machinery, construction equipment, power tools, and tobacco products.
Michelle is an experienced litigator and trial lawyer who strives to understand her clients long-term goals and partners with her clients not only to resolve pending litigation, but to provide forward-thinking solutions with an eye towards diverting future litigation. She serves in a variety of roles, as both primary and local defense counsel, and manages a large docket of products liability, toxic tort, commercial and general civil litigation matters. Additionally, Michelle is a leader in the American Bar Association and currently serves as Co-Chair of the American Bar Association Litigation Section›s Products Liability Committee. Michelle has also been recognized by her peers as a New Jersey Super Lawyers Rising star from 2014 to the present and has been recognized as a Best Lawyer in America.
Justice Coleman specializes in appellate practice and mediating disputes (including creditor disputes), and has a lifetime of service at all levels of the judiciary in New Jersey. He provides guidance and support at all levels. Justice Coleman served on the Worker’s Compensation Court, the Superior Court, Law Division, Superior Court Appellate Division, and ultimately, the New Jersey Supreme Court, over a period of 40 years, from 1964 to 2003. He was the first ethnic minority in the history of this great State to serve on three of those New Jersey Courts: the New Jersey Supreme Court, the Appellate Division, and the Justice James H. Coleman, Jr. (ret.) Worker’s Compensation Court. Of Counsel jhcoleman@pbnlaw.com 973.889.4088 145
Presenters
Kathryn K. Forman Associate kkforman@pbnlaw.com 973.889.4046
Judge Maurice J. Gallipoli (ret.) Of Counsel mjgallipoli@pbnlaw.com 973-889-4285
Joan Bannan Harris Counsel jbharris@pbnlaw.com 973.889.4306
Kathryn concentrates her practice in the areas of employment and labor law and education law. Kathryn defends employment discrimination, sexual harassment, and whistleblower litigation for public and private sector clients, in all aspects of discovery, motion practice and trial preparation and settlement negotiations. She also has experience with restrictive covenants, employee manuals, and workplace policies, often counseling clients on compliance with employment and labor laws.
Judge Gallipoli continues his legal career in litigation and dispute resolution, providing third-party neutral service as an arbitrator, mediator, discovery master, confidential investigator and/or trustee, as well as assistance with settlement negotiations and/or case management of complex cases. For the Superior Court of New Jersey, Hudson Vicinage, he was an Assignment Judge for 8 years, a Law Division Civil Part Presiding Judge for 16 years, and a Law Division Civil Part Judge for 1 year. He is a Fellow of the American College of Trial Lawyers and a vice chair of the Disciplinary Review Board.
Joan is a trial attorney whose diverse background enables her to be a thoughtful, strategic advocate who effectively evaluates and anticipates factual and legal issues to best represent her clients. Prior to joining Porzio, Joan’s experience included civil litigation, criminal prosecution and professional claims management. Formerly, as a medical malpractice defense attorney, she gained extensive jury trial litigating cases involving catastrophic injuries including neurological brain damage, loss of limbs, loss of vision and death.
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Presenters
Pamela M. Kapsimalis Counsel pmkapsimalis@pbnlaw.com 973.889.4052
Tanya Y. Shah Associate tyshah@pbnlaw.com 973.889.4159
Pam has significant experience working as both in-house and outside general counsel. She concentrates in corporate, commercial real estate, commercial lending, franchising, leasing, and general contract areas. Leveraging her in-house experience, Pam works with corporate clients of all sizes to serve as their outside general counsel, providing a wide array of business, employment, and legal advice to help them achieve their business objectives. Her experience in being General Counsel of a large international warehousing company brings a broader perspective and expertise in evaluating an individual’s or company’s legal risks.
Tanya is an experienced litigator who handles high exposure cases from pleadings to trial. Prior to joining Porzio, Tanya served as Assistant Corporation Counsel in the Brooklyn Tort Division of the New York City Law Department. There she defended the City of New York in civil actions arising out of alleged false arrest and excessive force cases, civil rights violations, premises liability, trip/slip and fall accidents, and motor vehicle accidents.
Judge Weiss brings a wealth of experience and perspective to Porzio, focusing his practice in the areas of litigation, mediation, and alternative dispute resolution. He was a New Jersey Superior Court Judge for 13 years and an Assignment Judge of Essex County for 5 years. Judge Alvin Weiss (ret.) Of Counsel aweiss@pbnlaw.com 973-889-4301 147
Presenters
Deirdre R. Wheatley-Liss Principal drwheatleyliss@pbnlaw.com 973-889-4278
Kerri A. Wright Principal kawright@pbnlaw.com 973.889.4327
Wendy Feldman Vice President, Corporate Counsel Cybersecurity and Privacy wendy.feldman@prudential.com 973.802.6000
Deirdre divides her practice between representation of business owners and their businesses, counselling individuals and families, and advising non-profit entities. Deirdre helps organizations to meet regulatory requirements by assessing current data privacy and cybersecurity policies against best practice frameworks. Deirdre provides counseling pertaining to policies and pre-incident planning, in order to minimize loss in the case of a potential breach, as well as managing an organizations response to a data breach incident. She is a frequent lecturer on best practices and corporate governance as related to privilege and cybersecurity.
Kerri focuses her practice in the areas of employment and education law, specifically in representation of management in both employment counseling and employment litigation. Kerri handles a variety of employment law matters for the firm’s public and private sector clients in state and federal courts as well as before administrative agencies, including the EEOC, PERC, NLRB, and the New Jersey Department of Labor. She has litigation and counseling experience in numerous areas of employment law, including issues involving wage and hour claims, restrictive covenants, harassment, discrimination, and whistleblowing. She has successfully defended management in class-action wage and hour lawsuits and has handled numerous investigations by management into allegations of employee wrongdoing. She also has represented management in all facets of collective bargaining and labor disputes.
Wendy Feldman is currently Vice President, Corporate Counsel Cybersecurity and Privacy for The Prudential Insurance Company of America. Wendy provides advice regarding domestic and international privacy law issues, with emphasis on GDPR and CCPA. She has been with Prudential since 2016. Prior to working for Prudential, Wendy spent 20 years working for AIG in various business and corporate functions. Wendy serves as Co-Chair of Prudential’s Pro Bono Committee and was recently elected to the Board of ACCNJ.
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Porzio, Bromberg & Newman, P.C. • 100 Southgate Parkway • Morristown, New Jersey
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@porziolaw www.pbnlaw.com
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