Attorney Journals, Orange County, Volume 180

Page 1

ORANGE COUNTY

Volume 180, 2021 $6.95

Easy, Proven Strategies for Reaching Your Full Potential on LinkedIn

Stefanie Marrone

4 Legal Process Automation Benefits You Need in 2021

Aneesa Needel Managing Your Law Firm Separation

Gaetan J. Alfano Leslie A. Mariotti It’s Groundhog Day: Are You in a Career Coma?

Shari Davidson

Solo Practitioner of the Month

Law Firm Business Development: Building a Sales Team

Silvia Coulter Personal Branding Tips for Lawyers

Kimberly Lerman Riots and Pandemics: Can an Employer Discipline or Terminate Employees Who Participate?

Brooke Iley William J. Anthony

Belen Gomez, Immigration Attorney, Anaheim

Providing Access with Dignity


Experienced PERSONAL INJURY LAWYERS

For Last-Minute Trials At Bentley & More LLP, we provide aggressive legal representation to consumers and employees across California. Our attorneys are fierce litigators with decades of experience advocating for our clients. While we are effective in resolving many kinds of conflicts outside of litigation, we have a proven track record of fearlessness in taking matters to trial and beyond.

Referral Fees Paid

Specialists in Cases Involving: • • • • • • •

Personal Injury Business Interruption Car Accidents E-Cigarette Explosion Workers’ Compensation Wrongful Death Insurance Bad Faith

4931 Birch Street, Newport Beach, CA 92660 | (949) 870-3800 | www.bentleymore.com


NEVADA REFERRAL & CO-COUNSEL RELATIONSHIPS NEVADA’S LARGEST & HIGHEST RATED INJURY LAW FIRM “Rick is one of the best lawyers in the country. I call him every time I have any issue in Nevada and would not hesitate to refer him any type of case of any size.” ~ C. Michael Alder, Esq., Alder Law, Los Angeles, California, CAALA Past President and Former Trial Lawyer of the Year

801 SOUTH 4TH STREET | LAS VEGAS, NV 89101


2021 EDITION—NO.180

TABLE OF CONTENTS 6 Personal Branding Tips for Lawyers by Kimberly Lerman

8 Four Legal Process Automation Benefits You Need in 2021 by Aneesa Needel

8

12 Easy, Proven Strategies for Reaching Your Full Potential on LinkedIn by Stefanie Marrone EXECUTIVE PUBLISHER Brian Topor

14 Law Firm Business Development: Building a Sales Team

EDITOR Wendy Price CREATIVE SERVICES Penn Creative

by Silvia Coulter SOLO PRACTITIONER OF THE MONTH

CIRCULATION Angela Watson

16 Belen Gomez, Immigration Attorney, Anaheim Providing Access with Dignity

PHOTOGRAPHY Chris Griffiths STAFF WRITERS Dan Baldwin Jennifer Hadley CONTRIBUTING EDITORIALISTS Gaetan J. Alfano William J. Anthony Silvia Coulter Shari Davidson Brooke Iley Kimberly Lerman Leslie A. Mariotti Stefanie Marrone Aneesa Needel WEBMASTER Mariusz Opalka ADVERTISING INQUIRIES Info@AttorneyJournals.com SUBMIT AN ARTICLE Editorial@AttorneyJournals.com OFFICE 30211 Avenida De Las Banderas Suite 200 Rancho Santa Margarita, CA 92688 www.AttorneyJournals.com ADDRESS CHANGES Address corrections can be made via fax, email or postal mail.

by Dan Baldwin

16

22 Should I Stay or Should I Go? Managing Your Law Firm Separation by Gaetan J. Alfano and Leslie A. Mariotti

24 It’s Groundhog Day: Are You in a Career Coma? by Shari Davidson

28 Riots and Pandemics: Can an Employer Discipline or Terminate Employees Who Participate? by Brooke Iley and William J. Anthony

28

Editorial material appears in Attorney Journals as an informational service for readers. Article contents are the opinions of the authors and not necessarily those of Attorney Journals. Attorney Journals makes every effort to publish credible, responsible advertisements. Inclusion of product advertisements or announcements does not imply endorsement. Attorney Journals is a trademark of Sticky Media. Not affiliated with any other trade publication or association. Copyright 2021 by Sticky Media. All rights reserved. Contents may not be reproduced without written permission from Sticky Media. Printed in the USA



Tips for Lawyers by Kimberly Lerman

P

ersonal branding is a topic gaining traction in the legal world. While many busy lawyers want to learn more about creating and maintaining their own brand, demanding careers and family obligations often prevent us from having time available to take on another seemingly extra project. But for those looking for a quick how-to, or perhaps a refresher, on personal branding, you’ve come to the right place. This article will give you a professional legal recruiter’s—and former practicing attorney’s—take on personal branding for lawyers.

• STEP ONE: Self-evaluate. Think about your strengths and areas for improvement. Figure out not only what you think you are good at, but also what you enjoy doing the most in your professional life.

What Is a Personal Brand for Lawyers?

• STEP THREE: Reflect on what you learned. Figure out what you’re good at doing to determine your personal reputation. Focus on the things you not only are good at but also that you enjoy, because those are the areas in which you’re most likely to shine.

First, it’s important to understand the meaning of the term personal brand. From there, you are in a better position to develop and promote your own. There are a number of different definitions of the term, but the concept can most concisely be summarized as a community’s image, perception or impression of an individual. As a lawyer, your personal brand is the way you are viewed by your legal community. In other words, your personal brand is your personal reputation.

Why Is a Personal Brand Important for Lawyers? Branding is important for individuals for the same reason it’s important for companies. Corporations know that individuals rely on brand reputation when making purchasing decisions. Similarly, companies rely on the reputation of individuals when making decisions on hiring, promotions, raises, and layoffs.

How Do You Create a Personal Legal Brand? Before you can begin to build and express your brand, you first need to create it. To begin, it’s best to focus on figuring out what you’re good at and what you’re known for within your community. I recommend the following steps:

6

Attorney Journals Orange County | Volume 180, 2021

• STEP TWO: Reach out to others in your professional network, including current or former supervisors, colleagues, peers and direct reports. Encourage them to provide honest feedback regarding your strengths and weaknesses. This can be done in an informal setting as a means to catch up with your colleagues and get direct input.

• STEP FOUR: Put together your personal “elevator pitch,” which essentially is the pitch you would give to sell yourself in 30 seconds or less if someone asked you, “Tell me about yourself.” You might take some time to write down your pitch, rehearse it, edit, and polish until you feel comfortable. Depending upon your audience, that pitch might change to suit the message you are looking to convey. • STEP FIVE: Get the word out! Let people know who you are and what makes you an asset to your community.

How to Build Your Personal Legal Brand Once you have created your personal brand, it’s time to make people aware of it. Start small. Share your elevator pitch with your online network and your closest connections. Then start to build a bigger online presence by commenting on LinkedIn posts made by your connections, sharing articles on LinkedIn, and of course continuing to build your online network. As you continue building your brand, start writing articles and giving speeches and presentations to continue to advance your presence in your community.


Using Your Brand to Advance Your Legal Career Building your brand is like putting money away into a savings account for a rainy day. Eventually you will be able to cash out, whether it’s when asking for a raise or promotion, or looking for a new job. Having your elevator pitch prepared and rehearsed prior to your annual review or next job interview likely will make the process a lot less stressful. And remember, don’t be shy about promoting yourself when the situation warrants. Remember that a lawyer is an advocate. When you’re asking for a raise/promotion or interviewing for a new job, it’s definitely appropriate to talk about how great you are.

Build Upon Your Personal Brand Even While Steadily Employed You never know when you might have an opportunity for an internal promotion and to advance at your firm or company. Also, many employers have a limited amount of money to utilize for raises and promotions each year. If your colleague down the hall is promoting their brand and you are not, that could be a factor when it comes time for raises and bonuses

to be determined for members of your department. Also, you never know when your secure job might suddenly become notso-secure. Within the in-house legal environment, company sales and reorganizations can come with little warning and result in layoffs; and in the law firm environment, mergers can result in conflicts and increased pressure to raise billing rates—all of which could suddenly leave you looking for a new job without much notice. The single most important piece of advice I can offer on this topic is to begin building your personal brand before you think you’ll need to rely on it. For most of us, it’s hard to make the time to squeeze anything else into our already busy lives, but if you ever find yourself in the unfortunate position of being underpaid, underutilized, or unemployed, you’ll be much better off if you already have a personal brand and an elevator pitch in place. n Kimberly Lerman is a Talent Manager in the Atlanta office of Legility. She works primarily with attorneys, placing them in a variety of positions in corporate legal departments across numerous industries as well as at law firms. Learn more at: https://www.legility.com/.

California Offices: Irvine, Los Angeles and San Francisco 949.660.8200 | ankura.com

Solving challenges with the right combination of expertise.

Ankura Consulting Group (Ankura) is a specialized independent consulting firm that provides litigation, financial, restructuring, strategic and operational consulting services. Our clients are corporations, legal counsel and government agencies facing the challenges of uncertainty, risk, distress and significant change. We focus on industries undergoing substantial regulatory or structural change and on the issues driving these transformations. Ankura is comprised of more than 1,500 professionals, including highly experienced eDiscovery experts; financial analysts; economists; certified public accountants; certified business appraisers; merger and acquisition specialists; professional engineers; and information management analysts. We have offices in over 38 cities worldwide.

Attorney Journals Orange County | Volume 180, 2021

7


4 Legal Process Automation Benefits You Need in 2021 by Aneesa Needel

M

cKinsey estimates that a whopping 23% of work done by lawyers today can be automated by existing technology. Just think of the efficiency this could provide to your organization. But does it mean you need 23% fewer lawyers? Not to worry though—as outlined by the UCLA Law Review, leading experts on automation believe that technology complements the work done by lawyers, rather than replaces them. In 2018, the total legal technology spend in the U.S. exceeded $3 billion—and this number has increased steadily since. Corporate legal departments are, of course, under unrelenting pressure to reduce costs while increasing efficiency. This is where legal process automation comes in—it allows companies to streamline, automate, manage, and measure all manner of legal tasks. Chances are, you may have a legal process automation solution in place already—but is it doing the most it can? Sliding into 2021, this is the perfect time to evaluate (or re-evaluate) whether or not you’re benefiting from your chosen solution. Here are three major potential benefit areas to take into consideration when looking for the best automation solution.

1. ROI and Cost of Ownership Let’s face it—no matter what legal process automation solution you look at, it all boils down to ROI and the cost to your organization. With the new pressures brought on by 2020, this is as important as ever. An effective legal automation solution provides immediate access to the entire set of tools needed for intuitive, drag-and-drop workflow automation and process transformation. Why wait to see what kind of return on investment you’re getting? A good solution demonstrates immediate ROI and scales easily with greater deployment across more processes, while giving you valuable insights into how your business processes are functioning so you can continually optimize them. On the same note, the best automation technology will lower your total cost of ownership. You can reduce total costs because you’ll eliminate infrastructure requirements, have predictable pricing, reduce training and support costs, and be equipped with the ability to embed risk and compliance best practices within processes, which also ultimately saves money.

2. Ease of Adoption and Use Any effective legal process automation solution should be built for ease of use and deployment, providing a level of self-service allowing you to design and publish workflows for any process with no coding, IT, or developer involvement necessary. Not only does it simplify your life, but this flows into your reduced cost while lowering the margin of human error. It’s a win-win! You should have the ability to configure custom integrations, and/ or integrate your solution smoothly and easily with major software applications, such as eSign integrations. One SaaS solution should be sufficient to use for your processes across multiple functions and departments. It should be flexible and scalable, with the ability 8

Attorney Journals Orange County | Volume 180, 2021

to respond quickly to changing needs with an agile methodology enabling implementation.

3. Better Compliance In terms of reporting and analytics, it’s important to have the ability to access reports in a variety of formats, as this provides visibility and transparency across your whole organization. This leads to increased accountability and better compliance. You should be able to track and monitor every transaction across all workflows, with a single-source of truth and audit trails. This is more vital than ever now that we’re dealing with remote workforces. Ideally, your solution should provide managed access to centralized documents, workflow statuses, and analytics with real-time collaboration. An effective solution would have been developed with top security experts and compliance managers to meet the toughest security standards, protecting your organization from changing rules and regulations and the dangers inherent in having a widely disseminated staff.

4. Added Agility What did 2020 impress upon nearly every department in nearly every company globally? That the ability to quickly pivot to address new circumstances, like remote workforces or the legal implications of a massive pandemic, is paramount. Legal process automation can deliver that agility like practically no other technological enhancement available to enterprise legal teams and other departments that work with them. The right solution can cross departmental boundaries and embed legal best practices in the workflows used by other corporate units, while also imparting the same efficiencies it does to the legal department. If that doesn’t make Legal a hero in the boardroom, we’re not sure what else would.

You Should Expect a Lot From Legal Process Automation It may sound like you’re asking too much of a single solution—but your organization deserves the best. Especially as organizations rebound from a difficult 2020, and stress agility, productivity, and efficiency more than ever before. Legal process automation can provide all of the above while saving your Legal Operations team and staff counsel from mundane, routine tasks and soul-killing paperwork, while liberating them to focus on more important tasks. Legal process automation can transform your company—your bottom line, employees, and clients alike will thank you for it. n Aneesa Needel is a Product Marketing Manager for Legal Operations and is dedicated to ensuring Mitratech’s platform and tools are understood and provide continuous value in the market.





Easy, Proven Strategies for Reaching Your Full Potential on LinkedIn by Stefanie Marrone

It’s never too late or early to start using LinkedIn. You have to start somewhere. I didn’t always have a strong LinkedIn network or presence. Just like everyone else, I had to start from scratch. And there was a long time where I didn’t do much on LinkedIn except for accepting connections. I dipped my toes into using LinkedIn by first building a strong profile and a wide network of connections. I made a connections plan and thought about who I could connect with from college and graduate school as well as all of my past jobs and volunteer positions. (When it comes to LinkedIn, having more connections is better to raise the likelihood that your posts will be seen.) Then I focused on my interaction on the platform, first liking, sharing, and commenting on my network’s posts. When I became more comfortable and confident, I started creating posts myself. Those included sharing articles I found that were relevant and useful to my network. I used Twitter to help me source articles by following various publications of interest to me and my connections. I thought of myself as a news aggregator, bringing important information to my network. I was able to differentiate myself by adding a few lines of text with each article explaining why it was important or insightful for someone to read. And that is such a key step to build in as part of your social strategy. You can’t just share an article without any introductory text. You get extra points if you tag an entity or a person in the post as well. And a gold star if you start to use a hashtag strategy (hashtags help your posts become more discoverable on any social platform). I reached my full LinkedIn potential when I began to create my own content, providing my network with helpful tips and insights. I paid attention to when my connections were on the platform so that they would be most likely to see my posts. I refined my content based on how well each post did. I started to use images and hashtags for each post.

12

Attorney Journals Orange County | Volume 180, 2021

And most importantly, I had confidence in what I was posting. I didn’t become discouraged if a post had a low number of likes, instead I tried to learn from it and refined my content strategy based upon the performance of each post.

Here’s what I did to grow my LinkedIn network and turn it into a business. If I can do it, so can you! • I focused only on the social channels where my target audience was (this meant LinkedIn) • I liked, commented, and shared others’ posts • I started writing about my speaking engagements and created takeaway posts • I turned my PowerPoint slides into social posts recapping the webinar or event • I built an editorial calendar to plan future posts • I shared only value-added content • I created visuals for each post • I made my content interactive and used video • I gave away free content, tools and helpful info • I looked at others for inspiration/ideas • I told personal stories and injected my personality into posts • I developed a hashtag strategy to enhance visibility of posts


• I regularly engaged with my followers—respond to each comment on your posts. It’s very helpful in terms of LinkedIn’s algorithm as well as just being a great way to interact with those who like your content. • I built a strong profile and regularly updated it, using new features released by LinkedIn (such as the amazing Featured section which enables you to pin certain posts to the top of your profile • I cultivated my network—adding new connections every week • I checked my LinkedIn messages, and actively sent messages to connections with whom I had lost touch or who were important to me so that I was top of mind with them • I recycled my greatest hits—reposting past content that did well using my editorial calendar to help me plan out content • I set up a sharing “pod” with 4 LinkedIn connections • I used analytics to refine my efforts • I posted at least 3X a week (then increased that to 5X), and I didn’t get discouraged if no one liked my posts. I knew that the audience would come if I posted good content.

The greatest thing about LinkedIn is that it’s never too late or early to start using it. You have to start somewhere. We all did. I have a lawyer client who’s in his early 60s who never used LinkedIn other than to create a profile and accept connections. He successfully started using it to bring in leads and build his brand within just 18 months of making LinkedIn part of his business development strategy. I hope this shows you that anyone can achieve success on LinkedIn and why it’s worth making LinkedIn part of your marketing strategy. Stay the course. Social media success is a long-term investment in you! n Stefanie Marrone advises law firms of all sizes, professional service firms, B2B companies, professional associations, and individuals on the full range of marketing and business development consulting services designed to enhance revenue, retain current clients, and achieve greater brand recognition. She also serves as outsourced chief marketing officer/marketing department for smaller firms. Over her nearly 20-year legal marketing career, she has worked at and with a broad range of big law, mid-size, and small firms, which has given her a valuable perspective of the legal industry. Connect with her at https://www.linkedin.com/in/stefaniemarrone.

Attorney Journals Orange County | Volume 180, 2021

13


Law Firm Business Development: Building a Sales Team by Silvia Coulter

A

question for firm leaders: If there were a way to quickly establish relationships with buyers at companies desired as clients, expand work at existing clients, collapse the sales cycle, increase top-line revenue, take some of the pressure off talented rainmaking lawyers, and add business professionalism at the firm, would you consider making an investment? Over the last 20 years, several firms have answered this question, “Of course!” as they initiated professional sales functions led and expanded by experienced sales professionals. Curiously, though, despite the measurable benefits and the precedent that already exists, many firms have not. They remain woefully behind professional services firms such as public accounting, consulting, and even architecture. Because law firms are using the current pandemic-induced business disruption to evaluate all their businesses’ components, perhaps it is time to also revisit the concept of professional sales as a part of today’s law firm. With some exceptions, lawyers dislike and deprioritize selling. Most did not anticipate it as part of their careers and have received no training, so they are generally not as good at it as a trained sales professional who has experience selling intangible offerings. To address these realities, some firms realize the enormous benefits of hiring sales managers and building teams of sales professionals. Naturally, there may be some initial backlash against management for heading in this direction, but the right sales professionals can quickly change partner perceptions. Yes, we’re talking about hiring externally focused, client-facing sales professionals. The benefits are significant, and partners who work with seasoned sales pros realize quickly that these business professionals bring to the pursuit team the enhanced ability to open doors, advance relationships, identify opportunities, prepare for sales meetings, participate materially (if not outright lead) sales conversations, identify and address sales obstacles, and advance discussions to the point where clients and potential clients can make a yes or no decision to the offering—in other words, to close. Recently the head of litigation of a global giant said, “Why would we hire someone like that who could turn around and walk out the door with our firm’s client contacts and go

14

Attorney Journals Orange County | Volume 180, 2021

across the street and do the same thing?” We ask, how is this different from the hiring of lateral lawyers and other business professionals who serve the client? It is an acceptable risk. And, in any event, when it comes to sales professionals, it is important to realize that though they may be an essential part of the firm’s relationship with a client, the client is served by a lawyer or team of lawyers whose role is to provide outstanding service and value while addressing legal issues. A sales professional’s relationship skills are important, no doubt, but it is the service team and its professionalism that cements a client to the firm. A department chair of a different 700-lawyer firm stated, “When we first hired Tricia, most of our partners were aghast that we had hired a sales professional. Then, suddenly, everyone wanted her time and help, and one person was not enough. It is amazing how such a professional works with our partners and how we have increased our odds of winning business by combining her business skills with our lawyers’ legal ones. Now, we cannot imagine not having salespeople at the firm.” And what about the all-important client perceptions of a firm adding sales professionals? “When we first launched sales at our firm,” says Press Millen, who was instrumental in engineering the profession’s first sales function at Womble Bond Dickinson, “our partners envisioned that when a salesperson showed up at a client, a trap door would open, sending the entire team to a fiery hell. Needless to say, that did not happen.” In fact, most general counsel deal with the sales professionals within their businesses, and they understand the role and importance of sales. To them, although it is a bit novel, having a sales professional on the law firm’s team seems natural and helpful in moving forward with business opportunities. Beyond doing traditional sales tasks such as targeting, opening doors, advancing relationships, and identifying new opportunities, professional salespeople enhance existing firm business development. For instance, want to transform key client teams to true strategic account teams? Get the help of a salesperson who is responsible for client growth. Want to win more opportunities when competing against other firms?


Hire a sales professional. Want to up your odds of winning proposals? Hire a sales professional who can identify and address the make-or-break sales issues resident in RFPs. Excellent sales pros, like great litigators, are trained to win. For each opportunity, they create a sales strategy and pursue it with a singular focus. Where does a firm start? Who does the salesperson report to? Start by looking at the firm’s most important clients—the ones that represent 80% of the firm’s revenue. Most firms find that these clients comprise one or two or at most a handful of industries. Identify and hire a professional from that industry who has strong and proven sales experience and extensive contacts with decision-makers in that sector. This could be someone from an accounting or consulting firm or directly from the industry itself. The reporting structure can be tricky. Many good and strong salespeople would never dream of reporting to a marketing person; however, that does not have to be the case. Sales and marketing are both symbiotic components of the business development continuum, and a strong marketing leader who has excellent management/leadership skills and an appreciation of the unique skills that salespeople bring, and excellent management/leadership skills can be an effective

administrator of the sales function. If not to a marketing leader, sales professionals should report directly to department chairs or managing partners. The reporting relationship is just one aspect of launching a sales function at a law firm. Other considerations include revenue expectations, compensation, sales “territories,” ethics considerations, and many others. We are more than 20 years into the advent of professional sales at law firms, and each of these issues has been considered and dealt with successfully. None are showstoppers. Yes, professional sales are something new for law firms. But those who have done it well agree that hiring an experienced salesperson may be the best thing the firm ever did. n Silvia Coulter is a Co-founding Principal of LawVision. Silvia is widely regarded as one of the legal industry’s most experienced sales, key client planning, and leadership experts. Her experience includes working as a former strategic account executive and sales leader at a Fortune 50 company, a chief marketing and business development officer at two global law firms, and consultant and facilitator to firms across the globe. This article was originally published on PinHawk’s Law Firm Marketing Brief, October 6, 2020. Republished with permission.

Monty A. McIntyre, Esq. Mediator, Arbitrator & Referee ADR Services, Inc.

To schedule, contact Christopher Schuster: (619) 231-1323 or christopher@adrservices.com

Organized, succinct summaries of EVERY new published California civil and family law case, published every month for $50.00 a month. Subscribe at www.cacasesummaries.com

Attorney Journals Orange County | Volume 180, 2021

15


HELPING DREAMERS

Achieve the Dream Belen T. Gomez

T

he boutique firm’s niche and focus is immigration law—especially family-based petitions, working with DREAMERS (young people brought to the U.S. as kids), and also working with survivors of crimes. Belen Gomez founded the firm in 2012 and incorporated the office in 2015. Currently, she is the solo attorney working with paralegals and an administrative assistant. Due to the high demand for immigration law services and her own considerable skills and experience, approximately 80 percent of her business is by referral. She and her staff are bi-lingual. Belen understands the nuances and relationship of immigration law with other areas of law and how those areas can affect a client’s case. These areas include tax, criminal, constant policy changes under different administrations, working with various agencies (USCIS, National Visa Center, US consulates abroad, the immigration court (Executive Office of Immigration Review), the Board of Immigration Appeals, even private immigration detention facilities). Although immigration law is federal law, state and local laws can dramatically affect her clients as well, so she often advocates for a client at many agencies. For example, many of her clients are survivors of crimes, which requires her to work closely with local police agencies to certify that the client was a victim and to help the authorities investigate the crime. Her commitment to her clients often extends well beyond legal representation. Belen cites as an example the case of an 18-year-old woman from Central America who was in immigration detention after she had made the incredibly hazardous journey to the U.S. She needed help in her bond hearing. Upon winning it she was going to be released in the middle of the night, but in a country she didn’t know, and thousands of miles from her family. Gomez told her family to buy the woman the plane ticket and that she would make sure that she made it to her destination safely. “She had already been through so much, and was fleeing from danger,” Gomez says. She waited for the woman to be released from detention late into the night. The 16

Attorney Journals Orange County | Volume 180, 2021

woman had been in the same clothes throughout the multiweek journey. She carried her things in a clear plastic bag and Gomez could see she had a little boy’s toy. Her nephew had come with her, but they had been separated by immigration. Gomez got her some clean clothes (she had to cut her other pants off because an ankle monitor was put on her), fed her and took her to the airport. She safely made the last leg of her journey with the family member she knew in the US. Gomez says, “I feel like I make a huge difference for folks. It is an extremely fulfilling feeling. Our work provides stability to entire families for generations. Children can stop fearing that their parent will be taken one day, and spouses can be with their partners. People who already call this country home and are our neighbors can feel like they can further invest in this country. Most importantly, the foreign national client can finally feel like they belong because they do belong.”

Immigration Law— A Natural Evolution Gomez says her focus on immigration and related law was not so much a conscious decision as a natural evolution. She is a third generation Mexican American. “I have always been interested in my family’s history and its relation to U.S. history, and was inspired by the civil rights movement. My own family has been a part of the U.S. for a long time; however, they experienced much discrimination.” Early on she felt a drive to help communities that have historically lacked full access to the legal systems. Gomez says, “I want the client to feel empowered with their specific case process. If they don’t qualify for an immigration benefit, I let them know and strategize with them some things that might help them in the future. I want them to feel like they can ask me questions and be open to tell me things that might affect their case.” She developed considerable experience in immigration law while in law school. As a newly licensed attorney, she borrowed


JOURNALS

SOLO PRACTITIONER OF THE MONTH

© Christopher TODD Studios

2021 2019


$700 for an office deposit and opened her own firm. Her business immediately took off. “I had no idea how to run a business but knew that I would provide quality legal services to my clients. I have a boutique practice that allows me to get to know my client’s family. Their case is not only their own case but has huge repercussions on their family: whether their kids will grow up with their mom, whether that young person will be able to go to college. The job has ramifications far beyond a legal decision,” she says. Her clients generally fall into three basic categories: family petition cases, special cases for victims of crimes, and DACA cases. Family petition cases involve a family member who is a lawful permanent resident or a US citizen and who wants to petition for their family members to become lawful permanent residents. Sometimes the family member is already in the U.S. (and has been for many years), and sometimes the person lives abroad. The most

to provide for themselves, their education, and their families,” Gomez says. A recent VAWA case showcases Gomez’s dedication, case management style and sometimes innovative approach to solving her clients’ legal challenges. A young woman approached Gomez saying she was married to a citizen and wanted to know her options. Gomez explained the woman’s situation and her options for obtaining lawful permanent residency. The woman then revealed that her husband had been emotionally abusive. She feared that she didn’t have any protections from being deported if she left him—he was manipulative and had threatened to call immigration on her. She would then be separated from their daughter, who was a U.S. citizen. Gomez explained the VAWA process, about petitioning for herself due to her husband’s emotional abuse. Although at first hesitant because she didn’t want to cause any harm to the husband, she moved forward

“I believe that most attorneys practicing immigration law are working towards a higher purpose and that is to help people achieve the dream of a successful, secure and happy life.” popular are a spouse petitioning for their spouse and where a 21-year-old US citizen petitioning for their parent who doesn’t have papers. Special cases for victims of crimes are generally U visa and VAWA (Violence Against Women Act) cases. Gomez has trained on working with survivors of trauma and cross-cultural considerations. The U visa is for victims of certain crimes that have helped with the investigation or prosecution of that crime. In addition to providing clients stability so that they can recover, it also helps communities stay safe because there isn’t fear by a vulnerable population of reporting crimes. VAWA helps survivors of domestic violence petition for lawful permanent resident status. This option allows survivors to not have to stay in an abusive relationship out of fear of deportation. DACA provides options for people brought to the U.S. as children. “These are a lot of fun. Young people with so many dreams in the country they consider home are finally recognized and able to get work cards

18

Attorney Journals Orange County | Volume 180, 2021

in this case. Gomez kept her promise to stay with the woman throughout the process, which took several years. During that time Gomez got her a work card and she was able to leave her husband and build up her selfesteem. She returned to the office as a totally different, much happier person. Gomez represented her in her immigration interview at the local office and her client was approved on the spot. The woman shared that she was so excited to finish college, have a career that would make her daughter proud, and become a citizen. Clients appreciate her personal touch and aren’t hesitant to offer praise. Perry McBride, a recent client, shares:

My wife and I had been looking for an immigration attorney for a while. We decided to go with Belen because she was very personal, explained very well what the process incurred and what it took. She also made us feel very comfortable.


© Christopher TODD Studios


© Christopher TODD Studios

Gomez is motivated by her own family to help others obtain family unity through immigration papers.

Serving the Community in the Community Gomez believes in serving her community by being actively engaged in and supporting different facets of that community. She and the members of her office volunteer for local organizations and at Catholic churches. She is frequently asked to provide “Know Your Rights” expertise, give information on immigration options families might have, and give free mini consultations. She has hosted workshops and consultation days as far away as Mecca, a rural area where there are many farmworkers. She has traveled to Tijuana for the weekend as a volunteer for the nonprofit organization “Al Otro Lado” that helps migrants at shelters. She has served as the Chair of the Orange County Bar Association, Immigration Section in the past. Gomez sees her future continuing in serving the community through volunteer service and especially through her legal

20

Attorney Journals Orange County | Volume 180, 2021

skills. The balance she has achieved serves both areas of her life well. “I do not need to scale my practice and take many more cases than I do now—as much as I love this work, it is very demanding and can take a toll on many attorneys. I want to remain intentional in the number of cases I take so that I can sustain this work for a long time,” she says. n Contact Law Office of Belen Gomez, APC Inland Empire Office 6809 Indiana Avenue Riverside, CA 92506 2400 E. Katella Avenue, Suite 800 Anaheim, CA 92806 (714) 449-1581 (951) 299-0114 www.belengomezlaw.com


We Know Marketing Like You Know the Law

Let us “do the time” to get your project right! • Writing for the layperson • Putting together a presentation • Developing a marketing strategy • Sprucing up your website

Personal attention. Powerful results. Zero attitude.

• Designing an ad, booklet, flyer or brochure • Establishing a better logo, mission statement or tagline

215-550-1435 • penn-creative.com


Should I Stay or Should I Go? Managing Your Law Firm Separation by Gaetan J. Alfano and Leslie A. Mariotti

T

he devastating financial fallout of the COVID-19 crisis has exacerbated law firm dissolutions and key attorney separations. Firms that were overleveraged, undercapitalized, poorly managed or otherwise unable to adjust to revenue slowdowns have failed outright or are struggling to adapt. Stakeholders, whether partners or shareholders, have been forced to consider their professional options, including voluntarily (or involuntarily) separating from their firms. We have counseled dozens of firms and attorneys with respect to professional transitions over many years. In our experience, our attorney clients who successfully forged new careers have followed these five suggestions.

Consider Your Options While Your Practice Is Vibrant The thought of uprooting your practice and starting over, either in another firm or on your own, is incredibly daunting. Attorneys, by nature, are creatures of well-honed habits. Consequently, you may find yourself succumbing to inertia and waiting until your firm literally is falling apart before planning your future. This inactivity is a huge mistake, as it is impossible for a practice to thrive in a failing environment. Instead, the consequences of business failure—e.g., working with limited and dwindling resources, dealing with professional and staff departures and the resulting impact on clients and cases, and attempting to manage a caseload despite the distraction of pressing administrative and financial issues—erode the time and energy required for an effective practice. While the icon of the “last man or woman standing” may play well in survival video games, it can be an unmitigated disaster in a failing law firm. If you have considered the issues facing your firm (and the impact on your practice) and have not been able to resolve them, then consider moving on before these issues degrade your career.

Know What You Are “Selling” and Sell Your Strength This next step requires a critical and honest self-evaluation: • What is the strength of your current practice? • How many clients are likely to follow you to another firm or take a chance with you if you choose to start your own firm? • Have you evaluated potential conflicts of interest if you affiliate with another firm? • How many other professionals and support staff will you need to service your clients and at what cost? • If you intend to start your own firm, how will you finance it? Do you have a rudimentary business plan? 22

Attorney Journals Orange County | Volume 180, 2021

Our most successful attorney clients all had one particularly important factor in common—a thoughtful plan to focus their practice in an area of strength serviced by as few professionals and staff as needed. They jettisoned marginal or declining practice areas and deferred plans to expand into others. This disciplined approach stresses focused practice analysis and business development while minimizing administrative expense. It also enhances opportunities for a strategic fit with a potential acquirer. Before considering you as a lateral partner or shareholder, a firm may impose this discipline by requiring you to complete a detailed questionnaire addressing important metrics such as historical billings and collections, portable business estimates, and staffing requirements. Alternatively, if you intend to start your own firm, this same exercise will provide you with a stronger, more analytical platform for success than a broad “let me see what comes in the door” approach to your career.

Understand These Three Fundamental Documents These are your firm’s lease, your firm’s operating line of credit, and your partnership or shareholder agreement. These documents inevitably will shape the circumstances of your departure. After payroll, a lease typically is a firm’s next greatest expense. Most attorneys, nevertheless, ignore the significance of the lease, blithely dismissing it as a “corporate” contract. Did you, however, agree to personally indemnify the firm for its lease and other corporate obligations through your partnership or shareholders’ agreement? If so, then you need to address it and any other “corporate” obligations that you may have overlooked. Did you also personally guarantee the firm’s operating line of credit or other credit facility? If so, will the lender agree to remove your guaranty if you leave? Is the firm in a financial position to satisfy the credit facility if you leave? Will the lender require new underwriting from the remaining partners/shareholders before agreeing to remove your guaranty? These too are critical questions that you must consider in any departure. Do you know your specific rights and responsibilities under your partnership/shareholder agreement? How much notice is required? Did you make a capital contribution and, if so, how/ when will it be repaid? Are you owed repayment of a loan to the firm and, if so, what are the repayment terms? If you are owed repayment of either a capital contribution or loan, did you agree in your partnership or shareholder agreement to stand behind other creditors, such as the bank and landlord? Finally, is your partnership/shareholder interest redeemable and, if so, under what terms? Older agreements tend to contain more lucrative separation terms for a departing partner/


shareholder, including a guaranteed fixed payment or a share of accounts receivables. The modern trend values a partnership/ shareholder interest either nominally in the document itself or through a formula that essentially limits one’s interest to a share of cash on hand and fixed assets at a point in time. This formula may explicitly exclude substantial assets such as work-in-process and accounts receivables, while including an offset for firm liabilities such as bank debt and accounts payable. Such a formula may minimize—if not eliminate outright—any substantial value for your shareholder/ partnership interest.

Evaluate Any Restrictions on Your New Practice In any professional transition, client choice is paramount and impediments to a departing attorney’s continued representation of a client are disfavored. For example, Pa.R.P.C. 5.6 prohibits contractual restrictions on an attorney’s right to practice after leaving a firm. If a client chooses to transition its matter to a departing attorney, Pa.R.P.C. 1.16 requires the firm to take reasonable steps to protect that client’s interest in transitioning to the departing attorney. Nevertheless, you may retain financial responsibility to your former firm for any unpaid fees or costs in contingent matters when a client elects your continued representation. Partnership/shareholders’ agreements in plaintiff’s personal injury firms typically have “tail” provisions that require a departing attorney to pay the predecessor firm a share of any fee and to reimburse costs in the event of a recovery. Such provisions generally are based either on a fixed dollar amount or percentage or on a “time in the firm” calculation. Under the latter, the fee is allocated based upon the time the case was with the predecessor firm, with that firm entitled to an increased percentage of the fee based upon the age of the case. Other tail provisions may provide for pro rata fee sharing, taking into account the time that the case was with each firm. Regardless, even in the absence of a specific tail provision in a partnership/shareholders’ agreement, the predecessor firm likely will be entitled to a fee for its work based on quantum meruit, payable not by the client but by successor counsel from the overall attorney fee. See Meyer, Darragh, Buckler, Bebenek & Eck v. Law Firm of Malone Middleman, 645 Pa. 362, 179 A.3d 1093 (2018). Accordingly, you must evaluate the financial impact of any legitimate contractual obligations on the viability of your new practice.

Leave Ethically and Professionally No one should want to start a new practice facing a TRO hearing or a Disciplinary Board complaint over the circumstances of their departure. Above all else, leave ethically and professionally as your reputation is your stock in trade. To get it right, you have numerous action items to consider, including: • Not soliciting clients before announcing your departure.

• Sending fair and straightforward election letters to clients, preferably jointly with the firm. • Arranging for the transfer of client files and materials openly and efficiently only after a client elects your continued representation. • Addressing client collections, fee sharing, any allocation of settlement proceeds, and any transfer of retainer funds, as applicable. • Arranging for new professional liability coverage and avoiding any gaps in coverage. • Arranging for the former firm to provide clients with your new contact information upon request. • Updating the Disciplinary Board with any new affiliation and your new contact information. • Filing the required substitutions or withdrawals of appearance depending upon a client’s choice for continued representation. Additionally, to comply with Pa.R.P.C. 7.1 and 7.5, make certain that your former firm removes your name from its letterhead, logo, and website. If you are departing from a corporation in which you were an officer, make certain that amended articles of incorporation are filed removing you as an officer. If the law firm corporation itself is dissolving, then the firm eventually should file an out of existence/withdrawal affidavit with the Department of Revenue. While optimal to resolve these matters amicably and comprehensively with your former firm, these issues often settle piecemeal or on a continuum, with disputes over fee sharing typically last to resolve. If that is the case, then you should prioritize resolving any issues impacting your ability to represent clients who have elected you. In his notes on The Last Tycoon, F. Scott Fitzgerald wrote that “there are no second acts in American lives.” He was wrong. If the cycle of law firm mergers and separations over the last 25 years has demonstrated anything, it is that there are many successful second and even third acts (or beyond) in one’s career as a practicing lawyer. Carefully considering these five suggestions has proven a good place to start that next act. n Gaetan J. Alfano is a Partner with Pietragallo Gordon Alfano Bosick & Raspanti, LLP. He is a member of the Executive Committee and the Employment and Labor Practice Group. Mr. Alfano has tried hundreds of cases to verdict and has substantial trial and appellate experience. Leslie A. Mariotti is a Partner in the Employment and Labor and Commercial Litigation Practice Groups of Pietragallo Gordon Alfano Bosick & Raspanti, LLP. Ms. Mariotti focuses her current practice on counseling, training, and representing private and public sector employers. She has represented employers in state and federal courts in all areas of employment law including claims of discrimination, harassment, hostile work environment and retaliation. Reprinted with permission from the January 5, 2021 edition of the Legal Intelligencer© 2021 ALM Media Properties, LLC. All rights reserved.

Attorney Journals Orange County | Volume 180, 2021

23


It’s Groundhog Day: Are You in a Career Coma? by Shari Davidson

Are You in a Career Coma? Do you find yourself unresponsive to the world around you? Nothing seems to phase you, and you are numb to the painful reality that you’re stuck in a dead-end job. There is no secret recipe for curing a career coma. What you can do is start taking charge of your situation. “What would you do if you were stuck in one place and every day was exactly the same, and nothing that you did mattered?” –Broadcast TV weatherman Phil Connors is assigned to cover the annual Groundhog Day in Punxsutawney, PA. Played by actor/ comedian Bill Murray, Phil finds himself caught in an infinite time loop, repeating the same day over and over again.

Okay, campers. Rise and shine. It’s Groundhog Day! Do you find yourself just going through the motions at work? Clocking in and clocking out, without truly investing your time? Author and executive coach Anne Marie Segal, “Given the riskaverse tendencies of most lawyers, coupled with demanding workloads, the concept of proactively creating a career path can be difficult to entertain. Yet if we do not drive our own careers, we are often driven down backroads and dead-ends that lead nowhere we wanted to go.” Do you find yourself unresponsive to the world around you? Nothing seems to phase you, and you are numb to the painful reality that you’re stuck in a dead-end job. “Without a proactive strategy you very well may lose sight of your goals and find that your job is no longer fulfilling. Suddenly you realize that your career is way off track” –Shari Davidson, Top Legal Recruiter.

Know the Warning Signs. • Churning out large amounts of work, with little thought. You are not working on deals, cases or projects that make a difference to the bottom line. • You have become immune to what’s going on at the office and suddenly are not invited to important meetings. • This self-induced coma has made you complacent, and you seldom take initiative to learn new skills. Your skill set is no longer relevant, and you now have limited options for advancement. • Your appetite for challenging work has waned, and you have little to no motivation to grow or change for the better. You’ve become risk averse. You’ve lost your edge and fear change. • You no longer see opportunities, and you are leaving money on the table. You are lost and cannot see the way out.

24

Attorney Journals Orange County | Volume 180, 2021

Wake Up! Try Something New and Get Some Professional Help. Lawyer Coach Anne Marie Segal, “You cannot get out of a career coma just by ‘thinking yourself’ out of it. Highly intelligent people tend to rely too much on their intellectual abilities to solve problems. This is not a problem that can be solved through brain power alone. In fact, that approach creates the same blind spots that led to a career coma in the first place.” On Balance Legal Search, CEO Shari Davidson—“There is no secret recipe for curing a career coma. Every case is different. What you can do is start taking charge of your situation, which takes guts, expansive thinking and powerful contacts: • Guts—First, you need to find the courage to recognize and admit to the problems that are plaguing your career. Then you need to make the commitment to addressing the problems head on and following it through to completion. • Expansive Thinking—Second, accept that resolve and a commitment are not going to be enough. You’ve hit a wall and need to make some changes. You no longer share the firm’s interests, values or career priorities. Instead, take time to understand who you are and what you want. Start thinking expansively, challenge yourself to re-engage and strategically find new solutions to reach the success you seek. • Contacts and Networking—Lastly, you need to associate yourself with others who can help you get out of your rut. Go outside your comfort zone and put yourself into new centers of influence to widen your circle of friends. Get new perspectives from your new social networks.” “Take the time to figure out what you think of you.” –Michael F. Melcher, author, The Creative Lawyer. Get out from behind your desk and out of your comfort zone. Join an exercise group or gym. Take on some pro bono cases in areas of interest. Join the board or a committee of a non-profit organization. Go on informational interviews. Finding out what legal recruiters or other career professionals can offer. Talk to a professional to get some honest feedback and support. Make those powerful connections that will get your career back on track. n Shari Davidson, is the founder of On Balance Search Consultants LLC. & On-Balance Life Center, which is a boutique search firm that specializes in finding top talent in the legal community. Shari has placed lateral partner attorneys, as well as group acquisitions & law firm mergers. And has assisted her clients in recruiting lateral associates, paralegals and legal secretarial positions. Learn more at: www.onbalancesearch.com.


Devoted to helping Orange County and San Diego County victims and their families obtain justice. Personal Injury — Wrongful Death — Truck Accidents — Negligence — Motorcycle Accidents — Medical Malpractice — Elder Abuse

ERIC DUBIN 949-477-8040 edubin@dubinlaw.com www.DubinLaw.com

Orange County, CA

Century City, CA

19200 Von Karman Ave, Sixth Floor Irvine, CA 92612

1875 Century Park East, Seventh Floor Century City, CA 90067


Jan M. Eckermann MD, FAANS Diplomate, American Board of Neurological Surgery Brain and Spine Surgeon

Jan M. Eckermann, MD, FAANS is a boardcertified neurosurgeon with over 10 years of experience in managing complex neurosurgical patients. We partner with personal injury attorneys to better serve your clients. Conditions Treated: • • • • • • • • • • • • • • • •

Back pain Back injuries Back spasm Neck pain Shooting pain in the arm (cervical radiculopathy) Shooting pain in the legs (lumbar radiculopathy) Sciatica Herniated discs Pinched nerves Chronic pain syndrome Failed back and failed fusion syndrome Traumatic brain injury Concussions Carpal tunnel syndrome Lumbar fusions Spinal stenosis

Dr. Eckermann has two locations: Newport Beach Office 1617 Westcliff Drive, Suite 203 Newport Beach, CA 92660 Phone: 949-514-7456 Fax: 949-209-4687

janeckermannmd.com

Bakersfield Office 2323 16th Street, Suite 407 Bakersfield, CA 93301 Phone: 661-479-7240 Fax: 661-843-7882


CREATE BUSINESS GENERATING VIDEO MARKETING CONTENT Say Goodbye to Expensive Pay-Per-Click Generate Your Own Internet Leads

Attorney Journals is Proud to Announce Our Partnership With Story Works to Help Drive New High-Value Clients to Your Law Firm

JOURNALS

Visit TheStoryWorks.io/sample to watch a recently completed video project and testimonial.

NEW LAUNCH PROMOTION – LIMITED TIME! Mention you heard about Story Works in Attorney Journals and receive $1500 OFF your first video project with us! For more information, contact Brian Topor at brian@attorneyjournals.com or 858-505-0314

www.thestoryworks.io


Riots and Pandemics: Can an Employer Discipline or Terminate Employees Who Participate? by Brooke Iley and William J. Anthony

T

he change in administrations has released a flood of protestors, some of whom have engaged in violent acts, while at the same time creating potential COVID-19 “super-spreader” events in the workplace. How should—and could—you, as an employer, handle employees who have participated in these rallies? What limits—and rights—do you have to discipline, terminate, or keep employees away from the workplace related to concerns about their off-duty conduct and the pandemic? Some top-level issues you should evaluate related to employees’ attendance at rallies, which intersect with a host of legal and company considerations, include constitutional law; state and local civil law; state and local COVID-19 regulations; and last, but certainly not least, your company’s own employment policies. Consider this scenario: It is Monday morning and, as you sip your first cup of coffee, your CEO calls and wants to immediately fire three employees who were seen on the weekend news at a political rally that turned violent. Not only did the CEO see them on the news, but she received texts and calls from customers demanding action and questions from company executives who want to know what the CEO plans to do. One of the employees on the news was wearing a company logo jacket while carrying a baseball bat as he forced his way into a government building. Another employee was seen carrying a racially insensitive flag and not wearing a mask while surrounded by hundreds of mask-less protesters but showed up for work today. The third employee was seen engaging in property damage. In addition to wanting to finish your coffee, you already have a hundred other things to do today. Such is the life of in-house lawyers, executives, and human resources professionals in a pandemic. Your mind is racing with how to think through all the ramifications and issues if you fire all of them, none of them, or some of them. Is it lawful? Is it advisable? Is it going to lead to negative publicity for your company if you fire them? Are there options to take other than terminating them? What are the ramifications of doing nothing? What message does that send to customers and other employees? Does being an “at will” employee mean anything these days? Let’s start by putting some structure around your thinking.

Gather the Facts and Review Your Company Policy As with all good employment decisions, we first need to know the facts. What videos are available to view and download? Are there pictures posted of the demonstration that implicate your company or the employees? Were the employees quoted by the media? Do you need to speak with the employees at issue as you generally do before making any final employment decisions? 28

Attorney Journals Orange County | Volume 180, 2021

While you gather the facts, you will need to determine whether each employee is at-will or subject to a “just cause” standard or process prior to termination. For example, does the employee have a contract, is the employee subject to a collective bargaining agreement, or is the employee covered by a tenure policy that affords them certain procedural rights prior to termination? Next, you need to review the employee handbook and other company policies to see if any are implicated. Is there a policy regarding off-duty conduct? If not, are there broad policies that apply to this scenario, such as a code of conduct or policy that discourages any conduct that harms the good name or reputation of the company? Moreover, do the company’s current COVID-19 policies speak to attendance at mass gatherings, or require more generally that employees abide by state and local restrictions, many of which have strict limits on the number of people who can gather together? Did the employee sign a COVID-19 form or self-certification after attending the protest(s) at issue that may contain false information related to these local laws and mask-wearing requirements? Finally, does the company have core values that it abides by, and do they support a decision to terminate a violator’s employment? You will also need to consider if the company has faced similar situations before to determine how it responded in the past. Between the pandemic and the scope of protests, many, if not most, companies are now facing employment scenarios never seen before.

Statutes, Regulations, Ordinances, and Public Policy Local and state laws can largely govern how you treat any of the three employees in the scenario laid out above, and this requires a careful reading of all the laws at issue as well as a close examination of everyone’s conduct. Specifically, assuming you are a private employer not directly subject to federal or state constitutional requirements, what laws are implicated by the CEO’s instruction to fire the employees? Some states and localities prohibit private employers from taking employment actions for “lawful” off-duty conduct or political activities. In the scenario above, some of the conduct at issue here may have been unlawful, but was it “political” as defined in the statute? Is attending a political rally where violent acts were perpetrated enough to negate it as protected activity? Probably not, but it will depend on the state or local law. Even if constitutional protections do not directly apply, do they form the basis of a claim for wrongful termination based on a “public policy” and, if so, were the employees’ actions protected by those constitutional provisions? Again, some of this activity may be protected, but criminal activity is not.


Next, the laws against discrimination require that the actions cannot be based on the employee’s characteristics protected by federal, state, or local law. This is where company policy and past practice come into play. Is there a policy that speaks to such activity? Is the company aware of situations where employees engaged in similar conduct that resulted in termination? For example, is the company aware of employees coming to work wearing clothes or otherwise displaying the same flag or similarly insensitive symbols? Have others attended demonstrations or mass gatherings that are not political without wearing a mask? Is the company aware of situations where applicants or employees had been accused of off-duty violence or property crimes but were hired or remained employed anyway? The next question is whether these employees are being treated differently than others based upon a protected characteristic and, if so, is there a legitimate business reason for doing so? Are all three employees “similar” just because they attended the same rally? Finally, are the employees subject to a collective bargaining agreement, employment contract, or policy that alters the at-will nature of the employment relationship or affords them certain procedural rights prior to discipline or termination? What workplace regulations and ordinances are implicated when employees were potentially exposed to others who may be positive for COVID-19, yet reported to work without disclosing it? If your investigation determined the political rally was a “superspreader” event, what steps do you have to take to ensure the safety and health of other employees and customers that these three individuals came into contact with? Must you report the situation to a government agency? Should you shut down the workplace for several days? Between state and local laws, the Constitution, and COVID-19, there are a myriad of issues that you must carefully consider and navigate.

Business Considerations You also need to think through the business ramifications of the employment decisions you will be making. What precedent are you setting? How will customers react? How will other employees perceive the company’s handling of the situation? It is usually best if you can tie these decisions to business-related considerations. Violence, theft, and unsafe practices all potentially impact the workplace even when the activity takes place outside of work. The activity described above is likely not protected by off-duty conduct or political activity statutes, but each law is written a bit differently. Customers and coworkers have the right to want to avoid working with people who commit crimes openly, display racially insensitive flags, or engage in activities that present a risk to their safety, such as attending mask-less rallies. As with all employment decisions, in determining the appropriate course of action, you should make sure that the issue is thoroughly investigated, consistent with company policy and past practice, and is fair. You need to evaluate the impact of the employment decisions on employee morale and retention as well as the legal and business risks associated with the decisions.

Crisis Management Last, but certainly not least, the scenarios depicted in this alert—and the possibility that matters related to them go viral on social media— are a reminder that companies should have crisis management plans in place. As we have continually urged during the past year, you must

have a crisis management plan that contemplates future impacts of an immediate response to negative publicity and reputational harm. Have you planned for the fallout from the “crisis,” which is defined as an abnormal and unstable situation that significantly threatens the organization’s strategic objectives, reputation, or viability? Crises are normally determined by how they impact an organization’s people, environment, assets, and/or reputation. Communication is key, and you need to quickly develop the crisis response considering what is important, audience perception, who needs to be addressed, what needs to be said, and method of communication. Equally as important, you are already engaging with your public relations team and procedures to plan for a response that will formulate the long-term message with a focus on rebuilding reputation. This requires a controlled message and clear coaching of the company’s representatives. Having reviewed your crisis management plan with your business teams and legal experts on a periodic basis is a necessity in just these situations.

Prepare Now All signs indicate that these issues may be with us for a while. Here are a few things to consider: • Determine what state and local laws are applicable to the off duty conduct of your company’s employees. • Review state law “public policy” claims to determine what impact, if any, they have on these issues. • Review your code of conduct and company policies to make sure that, consistent with applicable law, they address off-duty conduct that negatively impacts the workplace or the company. • Consider messages, bulletins, meetings, and training to educate employees regarding the company’s stance regarding such activities. Ensure that employees are aware of COVID-19 procedures and the ramifications of violating those procedures or making false statements on company forms. • Make sure that you have worked with your media relations team to ensure that you have messages and plans ready in the event the company’s name makes the national news because its logo is worn by someone engaging in unlawful behavior. Coming to employment decisions related to these complicated issues requires balancing a host of legal, ethical, cultural, health, and corporate considerations. n Brooke Iley and William J. Anthony are attorneys at Blank Rome, LLP. Brooke Iley counsels and defends domestic and foreign corporations in all areas of employment and labor law compliance and litigation, including wrongful termination, discrimination, harassment, wage and hour class and collective actions, trade secret disputes and data protection, and alleged fiduciary breaches. She represents clients in negotiations, litigations, and arbitrations nationally in these areas. William J. Anthony focuses his labor and employment practice on class, collective, and multi-party actions, including a broad spectrum of federal and state law wage and hour claims. Learn more at: https://www.blankrome.com.

Attorney Journals Orange County | Volume 180, 2021

29



TENACIOUS, CARING, AWARD-WINNING Accident • Injury Attorney

$45,000,000+ Recovered We Are Problem Solvers and Fighters

We have represented thousands of wronged and injured clients throughout multiple states, primarily in California and Arizona. And, we have personally recovered over $45,000,000 for our clients. OFFICE LOCATIONS: The Watermark 410 North Scottsdale Rd., Floor 10 Tempe, AZ 85281 480.542.5454

FIELDING LAW, APC

The Boardwalk 18575 Jamboree Rd., Ste. 600 Irvine, CA 92612 949.288.5484

hello@fieldinglawfirm.com

Licensed in Arizona for Plaintiff Personal Injury cases Hablamos español Referral fees paid

Toll free: 833.88.SHARK / 833.887.4275


STD U.S. POSTAGE

PAID

Santa Ana, CA PERMIT NO. 777

DON'T MISS OUT ON MILLIONS IN REFERRAL FEES

BRIAN CHASE 2020 DAILY JOURNAL Top Plaintiff Lawyer Former President CAOC - 2015 Trial Lawyer of the Year OCTLA - 2014 Trial Lawyer of the Year CAOC - 2012 Trial Lawyer of the Year Nominee CAALA - 2012 Former President OCTLA - 2007 Product Liability Trial Lawyer of the Year OCTLA - 2004

WHAT WOULD YOUR REFERRAL FEE BE?

We welcome you to partner with Bisnar | Chase in major auto product liability and crash-worthiness cases and all other types of catastrophic injury cases. MULTIPLE 8 - FIGURES

MULTIPLE 8 - FIGURES

MULTIPLE 8 - FIGURES

8 - FIGURES

8 - FIGURES

MULTIPLE 7 - FIGURES

MULTIPLE 7 - FIGURES

MULTIPLE 7 - FIGURES

MULTIPLE 7 - FIGURES

Seatback Failure - Auto Defect

Caustic Ingestion - Premises Liability

Airbag/Restraints - Auto Defect

Burn Injury - Product Defect

15-Passenger Van - Auto Defect

Door Latch Failure - Auto Defect

Address: 1301 Dove Street, Suite 120, Newport Beach, CA 92660 |

Dangerous Condition - Govt. Entity

Rollover/Roofcrush - Auto Defect

Seat belt Failure - Auto Defect

www.BestAttorney.com |

1.866.4BISNAR

|

949.752.2999