Attorney Journals, Orange County, Volume 185

ORANGE COUNTY

Volume 185, 2021 $6.95

Nonlawyer Ownership of Law Firms

J.P. Christian Milde Can Your Brand Be Too Premium?

Katherine Hollar Barnard Lawyer Impairment: What Is a Law Firm to Do?

Conor J. Slattery

Your Clients Are Not Stupid, So Stop Rate Hiking!

Yvonne Nath

California Case Summaries

Monty A. McIntyre

Law Firm Sales: Simple Scripts to Achieve Results

Silvia Coulter

5 Quick Tips to Build Better Business Relationships

Lindsay Griffiths

Attorney of the Month

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2021 EDITION—NO.185

TABLE OF CONTENTS 6 Your Clients Are Not Stupid; Stop Rate Hiking as if You Think They Are

by Yvonne Nath

8 Nonlawyer Ownership of Law Firms: Coming to a Jurisdiction Near You?

by J. P. Christian Milde

EXECUTIVE PUBLISHER Brian Topor

12 Lawyer Impairment: What Is a Law Firm to Do?

EDITOR Wendy Price

by Conor J. Slattery

CREATIVE SERVICES Penn Creative

ATTORNEY OF THE MONTH

16 Case Barnett, Case Barnett Law, Laguna Beach The Happy Attorneys

CIRCULATION Angela Watson PHOTOGRAPHY Chris Griffiths STAFF WRITERS Dan Baldwin Jennifer Hadley CONTRIBUTING EDITORIALISTS Silvia Coulter Lindsay Griffiths Katherine Hollar Barnard Monty A. McIntyre J. P. Christian Milde Yvonne Nath Conor J. Slattery 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 email or postal mail.

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by Dan Baldwin

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22 Law Firm Sales: Follow Some Simple Scripts to Achieve Results

by Silvia Coulter

24 Can Your Brand Be Too Premium?

by Katherine Hollar Barnard

26 Five Quick Tips to Build Better Business Relationships

by Lindsay Griffiths

28 California Case Summaries

by Monty A. McIntyre

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Your Clients Are Not Stupid; Stop Rate Hiking as if You Think They Are

by Yvonne Nath

A

good friend of mine who’s founded and served as an executive to several successful companies recently approached me with a complaint about his primary law firm, a top firm on the West Coast.

This law firm just raised hourly rates on him 10-20% across the board, he told me. Now, for instance, he’s paying $400-500 per hour for paralegals whose services and quality of work have not noticeably improved. His team still catches careless mistakes in this firm’s work. Yes, he believes the partner at the firm who charges $1,200/hour is worth it. As for the rest of the partner’s supporting team, he believes they are not worth it.

Historically, firms were able to increase their hourly rates each year like clockwork. However, since the 2008 recession, clients really have begun to question these increases and push back by asking for discounts (and by pushing back in other ways).

My friend asked me whether he should communicate his concerns over the rate hikes and quality to his law firm, or instead just pull the portfolio of work he sends them and take it elsewhere. (He is closer to pulling the work and taking it elsewhere.) He’s insulted—do they think he’s stupid? Why don’t they ask him what he actually wants from them and what he values about their services? He wishes this firm could come up with more creative pricing strategies where prices would only increase if the quality of the work and service actually improved, not merely because the firm wants or needs to make more money.

He also asked me whether I could recommend any ALSPs for his company and whether I could speak with this law firm to see if they would be willing to collaborate with an ALSP or two on his work (if they want to keep him as a client, they’re going to have to change what they are doing). Yes, to the above. I can assist with these things, but please understand that my focus is to help law firms get into the ALSP game in a proactive way before their clients come calling me for direct connections to ALSPs. Law firms: the time is now. Not tomorrow. Right now, you still have a chance to become the central manager of service providers. But soon, if you do not take this opportunity, your clients will bypass your firm and work directly with other service providers, including other law firms that already collaborate with ALSPs. Your clients have a varied and growing market of legal service providers from which to choose. You need to be ever more sensitive to what your clients think about your services.

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Attorney Journals Orange County | Volume 185, 2021

Don’t make assumptions (to “assume” makes an “ass” out of “u” and “me”); rather, take measures to ensure your law firm is delivering services your clients want and value.

If you include your clients in the service delivery decisionmaking process, you can gain their trust and buy-in, and they will respect the decisions more. Without these discussions, your clients may be exploring their outside options. These discussions will get you all thinking of some creative ways you can continue to work together through your firm.

Start by asking your clients: “What do you value most about the work you get from our firm? Is there anything you believe we could improve? Is there anything we do not currently provide you that you would find valuable?”

Then, if your firm is familiar with the trove of human capital, technology, and information resources available to you (both within your firm and across the broader market of legal support services), after giving some consideration to your clients’ preferences, you can go back to them and say: “For this type of work, we believe this combination of resources would be right for addressing your needs based on what you value.

What do you think?”

If you are not having discussions with your clients or surveying them about their satisfaction with your law firm’s services, you should be. Your take-it-or-leave-it approach is frustrating your clients. It’s not your clients’ job to fix your firm. If your clients are generous enough to go out of their way to provide you with feedback, they are doing your firm a service, not the other way around. Don’t confuse your clients’ silence with satisfaction or ignorance. They are not stupid. If you don’t ask, they may not tell you what you’re doing wrong…they may just walk away and take their work with them. n Yvonne Nath is CEO of ALSP Advisor, a law firm strategy consultant with LawVision, and creator of LegalInnovationAggregator.com, a free (and ad-free) directory of legal innovation. Yvonne is thinking about the blurring of lines between law firms and other service providers and how to help legal businesses find their blue ocean of opportunity beyond the competition. As a millennial, she is mindful of generational shifts, technological advances, and the evolution of work culture within the legal industry. Originally published in PinHawk’s Legal Administrator Daily on April 20, 2021. Reprinted with permission.

Nonlawyer Ownership of Law Firms: Coming to a Jurisdiction Near You?

by Christian Milde

T

raditionally, the only place to seek legal advice in the U.S. has been at a firm owned and run by one or more lawyers. Change, though, may be on the horizon. A few states have loosened the rules that enforce this norm, and several more are considering it. This shift is hardly seismic—at least, not yet—but, if larger jurisdictions adopt similar changes, these liberalizations may well begin to shift the national landscape.

The Current Rule With a few inapposite exceptions, ABA Model Rule 5.4 bars lawyers from sharing legal fees with nonlawyers and forbids law firms from having nonlawyer owners or officers.

The rule is intended to safeguard lawyers’ professional independence by insulating them from the supervision of nonlawyers who might prioritize profit over duty to clients. One practical effect of the rule is that law firms generally do not provide services outside of law, because any nonlawyers providing those services could never advance to become partners or hold supervisory authority over a firm’s lawyers. The prohibition on nonlawyer ownership also prevents law firms from offering equity to entice nonlawyer employees and from raising outside capital to fund major expansions or innovations.

Some commentators suggest that these limitations have the effect of preventing law firms from expanding, innovating, and finding ways to offer more economical services to a larger segment of the market. Others have suggested that allowing firms to form multidisciplinary practices (“MDPs”) that could offer legal services alongside other complementary services would positively affect the quality and cost of legal advice for clients.

Globally, restrictions on nonlawyer ownership have likely contributed to keeping large law firms smaller than their counterparts in other professional services industries, such as accounting and consulting.

Until recently, all 50 states followed some version of Rule 5.4, with the only significant outlier being the District of Columbia. D.C.’s rule has allowed nonlawyer ownership

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Attorney Journals Orange County | Volume 185, 2021

since 1991, and a small minority of D.C. firms have one or more partners who are lobbyists or public relations professionals, rather than lawyers. However, ABA Formal Opinion 360 prevents those firms from expanding into jurisdictions that follow Model Rule 5.4.

The Beginnings of Change The idea of changing Rule 5.4 is nothing new. When the ABA’s Kutak Commission was first formulating the Model Rules in the early 1980s, the Commission’s proposed version of Rule 5.4 permitted the splitting of fees with nonlawyers.

The Model Rules adopted in 1983 did not, however, follow that proposal, but instead reinforced the longstanding restriction on fee splitting. Subsequent attempts to change the rule failed to gain significant traction.

Changes have occurred internationally, especially in the past 15 years. In 2007, an Australian personal injury firm became the first publicly traded law firm, and in 2012, U.K. regulators issued the first licenses for law firms to convert to “Alternative Business Structures,” which can have nonlawyer owners and provide services beyond legal advice.

The current push for looser regulations in some U.S. jurisdictions appears to be driven by concerns over access to justice. In states that have adopted or are considering more permissive rules, the changes are often framed as an effort to encourage the development of legal business models and technologies that will reduce the oftenprohibitive cost of legal representation. That said, some regulators also seem to recognize that changes to Rule 5.4 may lead to outside investment in, and even ownership of, law firms by large corporations.

Major Shifts in Utah and Arizona In August of 2020, Utah created a time-limited pilot program allowing entities, including those owned by nonlawyers, to apply to the state’s newly created Office of Legal Services Innovation for permission to provide legal services. The program was initially planned to run

for two years, but has recently been extended to seven.

Applicants must explain how they propose to offer legal services through technology or a nontraditional corporate structure, and successful applicants are authorized for the duration of the program to provide legal services in their area of law (e.g., healthcare or housing) using their approved model. There are currently 26 entities authorized under the program, including established companies like Rocket Lawyer, two nonprofit efforts focused on medical debt relief, and a number of law firms with majority nonlawyer ownership. In March, the first U.S. law firm entirely owned by nonlawyers, Law on Call, opened under Utah’s program.

Less than two weeks after Utah’s program went into effect in August of 2020, Arizona’s Supreme Court followed the recommendation of its Task Force on the Delivery of Legal Services and issued an expansive order entirely abrogating Arizona’s version of Rule 5.4 as of January 1, 2021. Arizona now permits firms and their prospective nonlawyer owners to apply for licensure as Alternative Business Structures (“ABSs”), which may have nonlawyer owners and managers.

The changes in Arizona are significant, but the state’s ABS directory lists, thus far, only three licensed ABSs, none of which appear to be very large or to have a presence beyond the Southwest. Despite the program’s apparently slow start, other applications are in process, including one from Rocket Lawyer. Further, the new regulations clearly contemplate that the licensing scheme will eventually attract multinational corporations—the most expensive tier of the licensing fee schedule for ABSs is specifically for international firms.

Potential Future Changes Although regulatory changes in two comparatively small legal markets might seem like footnotes to lawyers in major East Coast cities, these shifts may portend larger changes.

Notably, California and Florida are both considering following Utah’s lead.

In May of 2020, California’s Bar established its Working Group on Closing the Justice Gap, which is tasked with the possible development of a regulatory sandbox akin to Utah’s pilot program. The decision establishing the group was notably broad—the Bar’s Board of Trustees explicitly rejected a counterproposal that would have prohibited the working group from considering liberalization of the ban on nonlawyer ownership. There has been recent debate, though, over whether participation in any pilot program should be limited to organizations focused on increasing access to justice. The working group will deliver

its recommendations to the Bar’s Board of Trustees in September of 2022, so it is conceivable that major changes could occur in the next few years in California.

The Florida Bar’s Special Committee to Improve the Delivery of Legal Services is slated to deliver a report to the Florida Supreme Court by July of this year. According to its most recent quarterly report, the committee is very likely to recommend that, subject to some regulation, firms should be permitted to have nonlawyer owners (but not passive investors). Recent meeting minutes show that the committee is looking to Utah’s pilot program as a possible model.

North Carolina’s state bar has also established a relevant committee. The bar’s Subcommittee to Study Regulatory Change appears to be in an information-gathering stage, judging by the recorded meeting posted on the bar’s YouTube channel. The committee has, however, expressed some interest in Utah’s program.

One place where changes to Rule 5.4 are still strongly opposed is at the ABA. The merits of deregulation aimed at increasing access to justice were hotly debated in February of 2020, and the eventual resolution expressly refrained from recommending changes to Rule 5.4. The report accompanying the resolution was also significantly revised, with an entire section being deleted and all references to Rule 5.4 being removed to facilitate the resolution’s passage.

Looking Ahead in Massachusetts For now, changes to other jurisdictions’ versions of Rule 5.4 are unlikely to have major effects in Massachusetts.

In the future, though, Massachusetts practitioners may find themselves as co-counsel with lawyers from other jurisdictions who have nonlawyer partners, and questions may arise about the propriety of sharing fees in such situations. As nonlawyer ownership becomes more common and ownership structures become more varied, Massachusetts lawyers would be well advised to seek guidance from ethics counsel before entering into any fee-splitting arrangements with lawyers from alternatively structured firms. n J. P. Christian Milde is a member of Conn Kavanaugh Rosenthal Peisch & Ford, LLP’s litigation department and maintains a broad practice working on both civil and criminal cases. He focuses on white collar work, investigations, appellate advocacy, and legal ethics and malpractice actions. He is also involved in other civil litigation and client advising, including land use, probate, employment, and insurance matters. Learn more at www.connkavanaugh.com.

Attorney Journals Orange County | Volume 185, 2021

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Lawyer Impairment: What Is a Law Firm to Do?

by Conor J. Slattery

I

n response to the coronavirus pandemic, many law firms implemented remote work systems. While this move was made to protect the physical health of law firm employees, it has made it more difficult to recognize and assess mental health issues that might interfere with a lawyer’s ability to practice law. Despite the prevalence of remote work, law firms remain responsible for monitoring the activities of their lawyers and other employees, and to take action if it becomes apparent that a colleague is suffering from an impairment that could lead to a violation of the Rules of Professional Conduct. Prompt action by the firm can protect the interests of the firm’s clients, while also ensuring that the affected employee obtains appropriate help.

Pursuant to Rule 5.1, a partner or lawyer with supervisory responsibility within a law firm is responsible for ensuring that the conduct of the firm’s lawyers conforms to the Rules of Professional Conduct. A partner or supervisory lawyer may be violating the rule if the lawyer “knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.” If a supervising lawyer knows, for example, that a lawyer is regularly failing without explanation to attend to work in a timely way, the supervising lawyer should inquire further, to determine whether there is some impairment that is preventing the lawyer from attending to his or her work. Impairment also can come to a firm’s attention in other ways, such as a complaint from a client of unreturned phone calls, or a report from a staff member of excessive drinking at a firm social function.

Once such a report makes its way to the firm’s managing partner, what is the firm ethically obligated to do? The Office of Bar Counsel suggests that the firm’s first step should be to speak with the impaired attorney about the situation, even if the firm does not believe any misconduct has occurred. Ellen M. Meagher, Office of Bar Counsel, When a Colleague Becomes Impaired: Obligations of Lawyers and Law Firms as to Incapacitated

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Attorney Journals Orange County | Volume 185, 2021

Partners or Associates (February 2005). This first meeting is an opportunity for the firm to find out whether there is a problem, whether the attorney recognizes and acknowledges the scope of the problem, and if so, whether the impairment can be cured, controlled, or treated. If the attorney is prepared to work with the firm in identifying the problem and coming up with a solution, the next step likely is a referral to Lawyers Concerned for Lawyers (“LCL”). LCL is a free and confidential attorney assistance program dedicated to helping those in the legal profession who are struggling with the personal and professional challenges of life as a lawyer. LCL provides mental health resources, addiction recovery support, and practice management services. If appropriate, LCL may be able to assist the impaired attorney in drafting up a monitoring plan that the attorney and firm can use as a basis for the attorney to continue practicing while working to address the cause of the impairment.

The firm’s next step should be to assess, based on information learned from the impaired attorney and other sources, whether the lawyer’s impairment potentially impacted on the attorney’s work for clients. ABA Formal Opinion 03-429 (Obligations with Respect to Mentally Impaired Lawyer in the Firm). The most common types of misconduct to occur in these instances are neglect and/or a failure to communicate with clients. It may be appropriate for the firm to assign a partner to review the attorney’s list of active matters and obtain a current status from the impaired attorney as to each matter. If the firm believes that the lawyer’s impairment may have had an impact on client work, the firm should review the attorney’s work product to determine whether any neglect has occurred, and whether there has been harm to the client. If the firm discovers any instance of misconduct that has caused harm, the firm promptly must inform the client of the issue and seek permission to take steps to undo the damage.

In these circumstances, the firm also should consider its obligation to report the impaired lawyer’s conduct to

the BBO pursuant to Rule 8.3. Impairment alone does not require such a report. A report is mandatory only if the attorney has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness as a lawyer. For example, if the impairment has resulted in improper or excessive billing, or misrepresentations to the client regarding the status of a matter, those instances could fall within the reporting obligations of Rule 8.3.

Additionally, if the impaired lawyer had access to the firm’s IOLTA account, the firm should conduct a thorough review of the IOLTA account to ensure that no client funds are missing or improperly recorded. A shortfall in an IOLTA account that results in a dishonored check will trigger an automatic report by the bank to the Office of Bar Counsel, which itself could trigger a wide-ranging review of the firm’s client funds accounts.

The last item on the firm’s action plan is a determination of whether the lawyer can and should continue practicing at the firm. This determination likely will depend on the extent of the impairment, whether or not the impaired lawyer acknowledges the impairment and is prepared

to work with the firm in addressing it, and whether the impact of the impairment can be lessened by treatment or adherence to a reporting and monitoring plan. If the impaired attorney is not prepared to acknowledge or address the impairment, the firm may need to make the difficult decision to separate the attorney from the firm.

Before doing so, the firm may wish to consult with outside employment or ethics counsel and review the firm’s personnel manual or partnership agreement depending on the status of the impaired attorney.

Identifying, addressing, and managing a colleague’s impairment can be a difficult task for any law firm to confront. Fortunately, there is guidance available from the resources cited in this article to assist law firms in navigating through these challenging conditions. n Conor J. Slattery joined Conn Kavanaugh Rosenthal Peisch & Ford, LLP as an associate in the fall of 2018. He maintains a broad civil litigation practice with a focus on matters in business litigation, employment law, land use, zoning, and a variety of work in the food and beverage industry. Learn more at www.connkavanaugh.com.

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Cover Feature

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JOURNALS

The Happy At torne ys Cover Feature

Finding a True Calling Reveals the Joy of Work In Civil Litigation for Case Barnett

by Dan Baldwin

Following your true calling and shedding limiting beliefs about yourself is essential in life. Lawyers need to run their practices so they can live the life they want. To live your true calling leads to a happy life—yes, to happy lawyers,” says Case Barnett, Founder, Case Barnett Law. Barnett believes living that type of life is essential to running a successful law practice. Lawyers are miserable because they work off the expectations and beliefs instilled in them by law school and old ways of thinking. Law students and lawyers compete for the highest paying jobs and the most unsatisfying life, he says. “So many attorneys just grind away at their careers only to find at the end of 30 years or so they’ve just ground themselves down.”

He and his wife, Nicole, have taken major steps in that direction and have established Case Barnett Law on the basic principle of doing good work and at the same time taking pride and genuine joy in that work.

Barnett has 17 years of trial experience and has managed his own personal injury firm since 2015.

The firm employs three trial lawyers, one managing attorney, one director of marketing, two paralegals, and

two financial operations/accounting people. “Nicole is our CEO—Chief Everything Officer,” he says.

The firm is totally committed to service in civil litigation and Case has taken more than 50 cases to trial throughout his legal career. Case Barnett Law practice areas include catastrophic injuries like traumatic brain injuries and quadriplegia, sexual abuse cases at churches and schools, wrongful death and nursing home bed sore cases.

The Beginnings of a Revolution Although Barnett is a third-generation attorney, the journey toward living a successful, meaningful and happy lifestyle in the legal profession began in 1992 when he was 12 years old observing his father’s arguments in the Rodney King trial. “That’s when and where I decided to be an attorney,” he says.

He is a lifelong resident of Orange County who graduated from The University of Santa Clara. He earned his J.D. from the University of California Hastings College of the Law.

© Christopher TODD Studios

Case and Nicole Barnett

Barnett joined the Orange County Public Defender’s Office in 2005 where he represented clients at each of Orange County’s criminal courthouses. “As a public defender I represented people accused of violating that most sacred of trusts and who did terrible things to children. I couldn’t do it. I saw the suffering of victims I had to cross examine and made the choice to help them and do what I could to get them justice,” he says.

He left the Public Defender’s Office to go into private practice and established his personal injury firm. And that’s where the revolution began.

Beginning a Personal Journey in Personal Injury Barnett says, “Nicole and I started this firm because we wanted to provide a different sort of personal injury firm for clients.

We wanted to offer people a more human approach. We want to connect with our clients and make them feel comfortable.”

Their partnership may be unique in the legal field. Nicole 18

Attorney Journals Orange County | Volume 185, 2021

Barnett is not an attorney, but has a background in fine arts and is a former 4th grade teacher. She’s responsible for the vision of the firm and works tirelessly to provide the best possible experience for their clients. “We jumped into this firm together and saw what our clients needed. Nicole brought me to the realization that you don’t have to do things the way they’ve always been done. She is the engine that drives the firm, but she is also the one who has shown me the path of true enlightenment through my personal development. It takes bravery to be different and honest with who you are.

She has given me that strength and we want to empower other lawyers to do the same,” Barnett says.

The firm is committed to the philosophy that the little things make the big difference. They take a very different approach to client care and client attention. The litigation is important and being able to try a case is important, but most clients are frightened of litigation, including the lawyers on the other side, the legal process and even their own lawyer.

Barnett says, “We work hard in all areas of our firm from the way we handle intake, to the paralegal contact to the preparation for deposition and trial to make clients feel comfortable. We teach them about the litigation, and we take them behind the curtain, so they’re not afraid of us, defense counsel or the process. We make it so they feel comfortable, so they ask questions and are engaged in the process. They then feel empowered and understand the process and the outcome.”

Barnett says that more than one client has said, “You guys aren’t like lawyers. You’re like people.”

“We take a lot of pride in that,” Barnett says.

A Holistic Approach to L aw yering Recently Case and Nicole have begun to make some big changes to Case Barnett Law and they hope to create a space that’s even more healing and supportive for their clients.

After suffering for months from “Long Haul Covid,” Nicole became frustrated with having no answers from the medical community. She enrolled herself in an Integrative Health

Spreading the Joy to Other L aw yers Barnett is passionate about sharing his knowledge, experience and joy found in serving people and communities through a legal career. He produces a podcast called Law Prophet where lawyers talk about their personal stories and how living their personal story drives their law practice and leads to happiness and fulfillment. The Law Prophet podcast is available on YouTube as well as Spotify and Apple Podcast.

He’s also about to launch an online course that will help lawyers in private practice scale and run their firms in a way that allows them to do the work they always imagined doing.

Barnett says, “A lawyer can’t truly serve their clients if they’re wearing all the hats in their business. Clients should get a lawyer who is only focused on high-level legal work, not one who’s answering the phones or doing paralegal work because they don’t have a trained team. So many lawyers go into private practice wanting flexibility and freedom to pursue their passions yet quickly realize they’re doing the exact opposite and end up totally burned out. Our online course and membership

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Practitioner program and is about to become a certified health coach. As she was learning about how to heal her own body, she quickly realized that she could use this new knowledge to help the clients of Case Barnett Law. She says, “Our clients have all suffered from injuries and events that have created trauma and damage to both their body and their mind. These things can be healed through integrative health practices. While we can never go back to ‘before the accident,’ we can certainly take steps to heal.”

Case Barnett Law will provide free information to their clients to teach them how to heal both the trauma of the event as well as the inflammation and damage caused to their body.

“It’s unheard of for a law firm to concern themselves with helping a client heal physical or emotional damage. It’s always about the money. We know that our trial experience makes us the best law firm for injured clients, but we wanted more. What do they need? Yes, they need money for future care. But they also need to heal their bodies and gain closure. We felt like we could do more to help so we decided to offer this for free to clients. If they want to try some things out, great. If not, we have other ways to help,” says Case.

The Barnett Family

Contact Case Barnett Case Barnett Law 1968 S. Coast Hwy, Suite 2680 Laguna Beach, CA 92651 (949) 861-2990 info@casebarnettlaw.com www.casebarnettlaw.com instagram.com/casebarnettlaw instagram.com/lawprophet

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EXP ER I ENCE

is going to change all of that for lawyers. Whenever possible we will provide them with “done-for-you” marketing, systems/procedures, templates and scripts that will make a huge impact on both their firm and their life. We will teach them how to run a firm like a business and hire a team to support the work they do. Lawyers should be freed up to do what they do best (and only that) and we aim to make that happen for them.”

In addition to their revolutionary thinking and practices, Case Barnett Law has attracted the attention of other attorneys and firms through referrals. Case Barnett Law has paid out more than $2 million in referral fees and expects to hit $5 million in referral fees by the end of 2021. Barnett says, “It’s an honor that other lawyers trust us and refer their clients, friends and family to us. We know that it takes a lot of trust to refer out a case and we make sure to treat their clients just as we would treat our own friends and family.” More than 50 percent of the firm’s business comes from attorney referrals.

“Part of what Law Prophet is about is teaching lawyers how to create stability in their businesses. A huge part of that should be referral fees. Think about it. If you’re a criminal defense attorney and you refer us a case, you’re most likely getting a check that could instantly double your income. All you have to do is refer us one case and you can add 6-figures to your income. I don’t know why every single lawyer isn’t learning how to market for cases so they can add passive income to their firm, but this is what we will teach lawyers in the marketing portion of our course.”

“We thrive on communication with the client and the referring attorney. The referring attorney will know what is going on every step of the way. We do not handle a volume case load and each client feels tended to and cared for. But the referring attorney and client should know we don’t take clients who don’t fit with our firm’s core values.”

Success and happiness in a career is a matter of attitude and the drive to maintain that philosophy in a competitive and complex profession. “We believe that every lawyer’s practice should be different because it should reflect their own true story and personality. If lawyers truly are themselves in their practice and their marketing, they will attract like-minded clients and live a life that makes the entire practice of law better,” Barnett says. n

“ EDUCATION • University of California Hastings College of the Law, San Francisco, California, J.D., 2001-2004 • University of Santa Clara, Santa Clara, California, B.A., English, 1997-2001

“ PRIOR WORK EXPERIENCE • Orange County Public Defender’s Office, Deputy Public Defender, 2005-2010

“ HONORS, AWARDS AND PUBLICATIONS • Advocate Magazine, The Defense Expert-Cross Examination, January 2021 • Better Business Bureau, A+ Rating • Super Lawyers, Top Rated Personal Injury Attorney • Orange Coast Magazine, Attorneys of Distinction April 2018 • Million Dollar Advocates Forum, Lifetime Member • Multi-Million Dollar Advocates Forum, Lifetime Member • Avvo Rating 10.0 Superb, Top Attorney Personal Injury • The National Trial Lawyers, Top 100 Trial Lawyers, 2016 • The National Trial Lawyers, Top 40 Under 40, 2015

“ PROFESSIONAL ASSOCIATIONS AND MEMBERSHIPS

• Orange County Trial Lawyers Association, Foundation Club Member • Orange County Bar Association, Member • Consumer Attorneys Association of Los Angeles, Member • Consumer Attorneys of California, Member • American Bar Association, Member • American Association for Justice (AAJ), Member

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Law Firm Sales: Follow Some Simple Scripts to Achieve Results

by Silvia Coulter

B

uilding business is about building relationships.

Every lawyer knows business development is an important part of being a member of the firm. And most understand relationships matter. But what to do and what to say is often the challenge many face with turning contacts into revenue opportunities.

Let’s dissect a few of these opportunities and below we present some tried and true scripts lawyers may use for approaching contacts.

1. For clients with whom you have completed some work but have no long-term, ongoing relationship yet.

“I’ve enjoyed working with you/getting to know you [whichever is most appropriate] and would welcome your thoughts and advice on how to continue to build a relationship with [COMPANY] for potential opportunities to work together.”

Then let him/her answer and go from there.

2. For referral sources/potential referral sources who have existing counsel relationships.

“We know [COMPANY] has good options when it comes to referring work to counsel. I’m very interested in hearing from you, what you think our next step should be to continue to strengthen our relationship with [COMPANY].”

Listen to how he/she responds and think of a next question that leads him/her closer to suggesting a next step for you to take for building the relationship which could include meeting more of the team from [COMPANY] at their location or at the firm.

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3. For inactive clients/contacts with whom you have not spoken in a few or more years. (The objective is to rebuild the relationship and not discuss BD right away) “It’s been a while since we connected, and I wanted to touch base to say hello and hear how things are going.”

Pause and let them answer or leave this as a message for them to return call.

“I would welcome the opportunity to schedule a time to talk with you to hear what’s going on with you, your business, etc.”

OR “I would welcome the opportunity to schedule a time to meet—I’ d be happy to come over to your office. Let’s look at calendars and figure out a good time.”

Remember, you are back at the beginning stages of the sales cycle—Assess Needs!

4. For connecting with your existing contacts who will introduce you to someone else in their organization.

“Thank you for all your support. I would appreciate your advice: Who else in the company do you recommend I meet to continue to build our relationship with [XYZ Company].

How should I go about meeting him/her?”

To follow up on that if they forget to make the intro: “[NAME], you’ve been great to offer to introduce me to [XXX]. I’m calling to follow up on your recommendation about next steps.”

Or to connect directly with the individual they suggested: “[NAME], I’ve worked with [NAME] over the past few years on some important projects. He suggested you would be a good person for us to connect with to learn more about your area of work at [COMPANY]. What works on your schedule for a virtual/in person meeting?”

5. For connecting with your existing contacts who will introduce you to someone else in their business network (outside of their organization).

To approach someone in a different way, you may also want to say: “I appreciate the opportunity to work with you and would welcome your advice about something. As I continue to build my practice, are there one or two people in your network who you think I should meet?”

Sometimes people are not in a position to give you business but are in a position to introduce you to others.

6. For turning friends/neighbors into potential business opportunities.

At a social outing or neighborhood meeting, you might say: “Cynthia, I’m going to give you a call at your office next week to find out more about your business and to discuss ways in which we might have opportunities to work together.”

If you want to address the issue further, you may say once you do have a meeting: “Our friendship is of utmost

importance to me, and I don’t want to jeopardize that. At the same time, it seems that we could pursue opportunities for working together. Do you agree?”

Keep these scripts in mind if you are a lawyer who is building a book of business, a BD professional who is helping lawyers build their books of business, or leadership at the firm who are asking others to build their books of business. It takes time. It takes energy. It takes confidence. And it takes a developed skillset. And one must connect with one’s contacts. Check in with contacts and inactive clients to see how they are doing. Get out of your comfort zone. Find a little time each week to focus on relationship-building. Results will follow. 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. Learn more at www.LawVision.com.

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Attorney Journals Orange County | Volume 185, 2021

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Can Your Brand Be Too Premium?

by Katherine Hollar Barnard

It

is almost an enviable problem.

After a law firm—let’s call it Stark & Banner—won a number of high-profile, high-stakes cases, the firm earned a reputation as a premium litigation boutique in its area of specialty.

The challenge: The market has started to perceive Stark & Banner as only handling the biggest, baddest matters…and referrals for basic work have slowed. The lawyers are hearing comments like, “Well, it’s not quite a Stark & Banner case, so who would you send this client to?”

This stings for a number of reasons: • The high-profile cases in their realm are sporadic; focusing exclusively there is not a reliable source of revenue.

• Stark & Banner can quite profitably handle more commonplace matters.

• The firm recently hired a couple of younger lawyers to handle exactly this type of work. In addition to wanting to keep them busy, Stark & Banner counts on straightforward matters to provide experience and grit.

How can the firm re-capture its referrals for basic work without losing its big-case cachet?

To be sure, referrals from the lawyer community are critical for Stark & Banner, just as they are industrywide. According to Clio research, 59 percent of consumer clients seek a referral of some kind when they need a lawyer. On the corporate side, they are even more significant; Greentarget states that both the C-suite and in-house counsel rely on “recommendations from trusted sources” most when scouting potential law firms.

Stark & Banner needs to reiterate to the market that it is ready, willing, and able to handle bread-and-butter cases in its area of expertise—but the firm is understandably hesitant to launch a campaign that dilutes its standing as the firm of choice for complex matters. (And we’re not that keen on “Stark & Banner: Here for your run-of-the-mill-stuff, too.”)

When a marketing problem is this nuanced and complex, it helps to fall back on the fundamentals. Specifically, let’s look at the “Four Ps” of the marketing mix: product, price, place, and promotion.

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Product. Since the firm is targeting basic cases, there is a considerable opportunity to analyze this work and create a rich bank of knowledge; basic cases are more likely to be frequent and similar.

Stark & Banner can consult its various sources of data (intake, billing, and timekeeping systems, among others) to learn: • Who is doing the work? How do the tasks break out between paralegals, junior attorneys, and senior partners? What kind of capacity is necessary?

• Where is the work coming from? Who are the specific referral sources that matter most?

• How much does this work cost? How much does it cost to complete this type of matter—not in billing rates, but in actual cost to the firm?

• What are the meaningful subtypes of this work? For example, does one jurisdiction take substantially more time and effort? Are we promoting one homogeneous case “product,” or are there several of them?

• How long do these cases take? This doesn’t refer to attorney hours; think weeks, months, years. How long do matters last from matter opening to resolution? At what points are there bottlenecks or significant lags?

In addition to the quantitative information, the lawyers should think qualitatively too: • Why does this work matter? While every case is different, within this given area of focus, what are the common themes, stakes, and client fears?

• What happens next? After resolving these cases, are there complementary services required or common next steps? Does it make sense to bundle this work with anything else?

• What are common misperceptions or client issues?

• How could this be improved?

• How are we better at this work than our competitors?

By answering these questions (to start), the lawyers at Stark & Banner will be empowered to make informed decisions about pricing and staffing, and they may be inspired to make process improvements that help internally and externally.

that separates the basic work into something new—a subtle professional services version of a “flanker strategy,” like the Mercedes C-Class or Courtyard by Marriott.

Options to consider:

Price. Now that Stark & Banner has real data about the casework it wants to capture, it can consider new pricing options. The firm need not discount its basic work per se— but with data, it could calculate options for fixed fees. Again, the matters in question are frequent, similar, and reasonably straightforward; they lend themselves to fixed fees. This alleviates a common client concern: According to Clio, 66 percent want an estimate of the total cost for their case.

• The new hires: Introducing them as the go-to contacts is a “news hook” that also preserves the Stark & Banner partners for major matters. The new attorneys can be introduced in coffee meetings, bar association publications, website press releases, firm social media and more, and positioned as the firm’s resources for this work.

Place. The firm should review its online presence to ensure that, big headline cases notwithstanding, it presents as an approachable option for people who need their basic services.

It is a near certainty that a potential client will look at the firm’s website or search for “Stark & Banner” after receiving a recommendation.

Indeed, according to Clio data, while 59 percent of consumer clients seek referrals, 57 percent search on their own—and 16 percent did both.

What they are looking for: • 77 percent want to know the lawyer’s experience and credentials.

• 72 percent want to know what kind of cases they handle.

• 70 percent want a clear understanding of the legal process and what to expect.

Of course, the Stark & Banner website should trumpet its major accomplishments—but it should also show examples of the everyday work. The list of practice areas or services should present a menu of options that is easy for a nonlawyer to understand; website visitors can self-select the content most relevant to them, whether it’s for basic services or high stakes matters.

Finally, the Stark & Banner lawyers can position themselves for more of the straightforward matters by providing educational resources for prospective clients (What to Expect, Frequently Asked Questions, What to Bring/How to Prepare, and the like).

At the same time, the firm should Google itself—are all of the first-page hits centered around the cases that are more the exception than the rule? Are the firm’s social media pages welcoming to the general public?

Promotion. We do not want to cannibalize the opportunities for high-stakes work; it’s critical to preserve the firm’s reputation in that arena. We would draw upon the work done for the Product and Price components to develop messaging

“Jane, I wanted to introduce you to John Doe, who joined our firm to handle X…please keep us in mind if you have clients or contacts who need help there.”

• The new product: Did the research into the product lend itself to any revelations or process improvements?

That’s a news hook, too.

“Jane, we wanted to tell you about our firm’s new approach to X cases…”

• The new price: If the firm did adopt a fixed fee or another new pricing strategy, that’s a great message for recurring referral sources and the website.

“Jane, a lot of our clients have been asking for predictable pricing for X, so we have put together some options.

Please check it out and let us know if we can ever help your clients or contacts.”

In walking through the four Ps, Stark & Banner now has: • A firm handle on exactly what it’s selling—and ideas on how to do it better.

• A price that’s more competitive—but not necessarily discounted.

• A website that validates referrals and more effectively captures business from them; and • Messaging that encourages more of the basic referrals while maintaining the firm’s prestige.

The fundamentals are, well, fundamental for a reason: They keep the firm from chasing one-off tactics or trends, and they generate a marketing strategy that is thoughtful, wellrounded, and authentic. n Katherine Hollar Barnard Is the Founder and Chief Executive Officer for Firesign to help legal industry clients attract, win, and retain business. She draws upon more than 10 years of experience at two of the nation’s largest law firms to build brands that connect and business plans that deliver. Learn more at www.firesignmarketing.com.

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5 Quick Tips to Build Better Business Relationships

by Lindsay Griffiths

T

here’s no quick fix for relationship development. But there ARE some quick things you can do today to advance either the first step in your relationship with someone or the next step. When you think of networking and relationship building as a series of smaller actions that you can take to help weave the fabric of stronger relationships, it stops feeling so overwhelming and starts feeling like something you can build into your everyday schedule. So whether you’ve got five minutes or an hour, you can strengthen your network today:

 Call a peripheral person in your network We have close relationships, and then we have acquaintances, within our networks. Call up someone you don’t know well, ask them if they have a few minutes to chat and get to know them a little bit better. Find out what they do, how you might be able to help them, and how you can keep them on your radar for the future. Bonus points if you arrange to make this a video chat—I know we’re all tired of Zoom and Teams, but it IS the next best thing to meeting in person these days. Bonus bonus points if you arrange for a follow-up past your first outreach.

 Follow up with a close relationship and establish next steps With your closer relationships, reach out to someone that you should be connecting to more regularly, and establish your next steps. Should you be setting up a meeting or a meal with them (where safe)? Do you owe them an email on a proposal, or are you interested in their latest project (or vice versa)? What is something you can get on your calendar AND connect with them over today?

 Reach out to 3-5 LinkedIn connections based on their posts/articles/updates Browse through your LinkedIn timeline and see what people are up to. If something strikes you, reach out to that person directly—but do more than comment on their update. Send 26

Attorney Journals Orange County | Volume 185, 2021

them a note through LinkedIn, either congratulating them on their anniversary/achievement, asking them more about the article they wrote or looking to start a dialogue on the piece they shared. The idea is to engage in a conversation that can lead to deepening the relationship. Big bonus points if they’re in your local network and you arrange to meet in person (where safe) or at least arrange for a virtual call.

 Arrange to meet face-to-face or virtually with one person Set up a face-to-face or virtual meeting—this can be with a close relationship that you’re looking to take the pulse of, or it can be with someone further outside your network that you’d like to better develop. Whoever it is, arrange to meet for coffee, a meal, or a virtual meeting, so that you can have that in-person connection (where safe) or connect visually.

 Set three calendar reminders for the next month While you’re at it, put some plans in place for networking. It’s easy to get motivated when you have the time/energy, but that fades when other projects and work happen. So while you’re thinking about it, set up three reminders in your calendar to follow up on something related to networking—it can be any of the above ideas, or follow-up to the conversations that you’ve had as a result of these. But get it on the calendar so you won’t forget.

What are some of your best networking tips? And along with networking itself, what are some of the ways that you stay motivated to keep strengthening your network when it might seem difficult to stay engaged and invested? n Lindsay Griffiths is a law firm network executive responsible for the oversight and management of dayto-day operations of the International Lawyers Network.

Develops strategies and implementation plans to achieve the ILN’s goals. Responsible for recruitment, member retention, and a high level of service to members. Engages in the legal industry to stay on top of trends, both in law firms and with law firm networks. Learn more at www.ilntoday.com.

California Case Summaries New California Civil Cases

by Monty A. McIntyre, Esq. These recent cases summarized by Monty A. McIntyre are from his publication California Case Summaries™. Monty prepares short summaries (one paragraph), organized by legal topic, of every new published California civil and family law case that California lawyers can subscribe to on either a monthly, quarterly or annual basis. Monty also offers specialized practice area annual summaries in the areas of Employment, Family Law, Real Property and Torts. For more information go to https://cacasesummaries.com. A California civil trial lawyer since 1980, a member of ABOTA since 1995, a past president of the SDCBA and San Diego ABOTA, and also an expert Zoom user, Monty serves as a mediator, arbitrator and referee with ADR Services, Inc. handling cases throughout California in the areas of business, elder abuse, employment/wage & hour, insurance bad faith, legal malpractice, medical malpractice, personal injury, real property and wrongful death. Web: https:// www.adrservices.com/neutrals/mcintyre-monty/ To schedule a matter, contact Monty’s case manager Haward Cho, (619) 233-1323 or haward@adrservices.com.

CALIFORNIA SUPREME COURT Employment Kaanaana v. Barrett Business Services, Inc. (2021) _ Cal.5th _ , 2021 WL 1166963: The California Supreme Court affirmed the Court of Appeal’s decision, in a wage and hour class action, that the work performed by plaintiff contract workers working as belt sorters for a county sanitation district falls within the definition of public works in the Labor Code and they are entitled to prevailing wages. The issue was whether the belt sorter work qualified as public works as defined in Labor Code section 1720(a)(2). The California Supreme Court ruled that the most reasonable interpretation of “public works” in Labor Code section 1720(a)(2) was that it was not limited by the definition of “public works” related to construction work set out in section 1720(a)(1). The belt sorters’ labor qualified as “public works” under section 1720(a)(2). (March 29, 2021.)

Landlord - Tenant Stancil v. Super. Ct. (2021) _ Cal.5th _ , 2021 WL 1727612: The California Supreme Court affirmed the Court of Appeal ruling denying defendant writ relief from the trial court’s order denying defendant’s motion to quash service of summons under Code of Civil Procedure section 418.10 in an unlawful detainer case. The California Supreme Court held that no defendant may use a motion to quash service of summons as a means of disputing the merits of the unlawful detainer complaint’s allegations or to argue the plaintiff failed to comply with the pleading requirements specific to unlawful detainer actions set out in Code of Civil Procedure section 1166. (May 3, 2021.)

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Penal Code Smith v. LoanMe, Inc. (2021) _ Cal.5th _ , 2021 WL 1217873: The California Supreme Court reversed the Court of Appeal’s decision affirming the trial court’s judgment for defendant in an action alleging improper recording of a phone call in violation of Penal Code section 632.7. The California Supreme Court ruled that section 632.7 applies to both the parties to a communication, prohibiting them from recording a covered communication without the consent of all participants, and to recording by persons other than parties (“nonparties” to the communication), such as an individual who covertly intercepts a phone call and eavesdrops upon it. (April 1, 2021.)

CALIFORNIA COURTS OF APPEAL Arbitration Banister v. Marinidence Opco, LLC (2021) _ Cal.App.5th _ , 2021 WL 2036529: The Court of Appeal affirmed the trial court’s order denying defendant’s petition to compel arbitration in plaintiff’s lawsuit alleging discrimination, retaliation, defamation, and other claims as a result of her termination as an employee. Defendant attached to the petition a copy of the arbitration agreement purporting to bear plaintiff’s signature. However, because plaintiff challenged the validity of the signature, defendant was required to establish by a preponderance of the evidence that the signature was authentic.

The Court of Appeal ruled that substantial evidence supported the trial court’s conclusion that defendant failed to prove that plaintiff electronically signed the arbitration agreement. (C.A. 1st, filed May 30, 2021, published May 21, 2021.)

Civil Code

Employment

Smart Corner Owners Assn. v. CJUF Smart Corner LLC (2021) _ Cal.App.5th _ , 2021 WL 2010152: The Court of Appeal reversed the trial court’s order granting defendant’s motion for summary judgment in a construction defect case on the basis that plaintiff association failed to obtain the consent of more than 50 percent of its condominium owner members before filing the action as required by the governing declaration of covenants, conditions, and restrictions. After plaintiff filed its notice of appeal, the Legislature enacted Civil Code section 5986, effective January 1, 2020, rendering prelitigation member vote requirements null and void. The newly enacted statute abrogated the defense that noncompliance with such conditions defeats a construction defect claim. The Legislature also expressly provided the statute would apply retroactively “to claims initiated before the effective date of this section, except if those claims have been resolved through an executed settlement, a final arbitration decision, or a final judicial decision on the merits.” (Section 5986(d), italics added.) The Court of Appeal concluded that a “final judicial decision on the merits” within the meaning of section 5986 (d) does not encompass a judgment that was not final on appeal as of the statute’s effective date. Section 5986 therefore applied retroactively to plaintiff’s claims requiring reversal of the judgment entered against plaintiff. The Court of Appeal also held, as an independent ground for reversal, that the prelitigation vote requirement at issue in this case violated fundamental state public policy by making it more difficult for the plaintiff to hold defendant developers accountable for construction defects. The Court of Appeal also found the requirement to be unreasonable, unconscionable and violative of the fundamental state policy against unreasonable servitudes insofar as it required strict compliance as a precondition to suit and prohibited members from providing their consent later through a vote ratifying a board decision to file suit. The trial court was directed to enter a new order denying defendant’s motion for summary judgment.

(C.A. 4th, May 20, 2021.)

General Atomics v. Super. Ct. (2021) _ Cal.App.5th _ , 2021 WL 2176921: The Court of Appeal granted a writ petition by petitioner (defendant in the underlying action) ordering the trial court to vacate its order denying defendant’s motion for summary adjudication and enter an order granting the motion.

Plaintiff filed a putative class action and a representative action under the Private Attorneys General Act (PAGA; Labor Code section 2698 et seq.). Plaintiff alleged that defendant violated Labor Code section 226(a) by providing wage statements that did not identify the correct rate of pay for overtime wages.

Plaintiff maintained that the correct overtime rate was 1.5 times (1.5x) the regular rate of pay, and the wage statements provided by defendant showed only 0.5 times (0.5x) the regular rate. Plaintiff did not contend that defendant had incorrectly calculated overtime pay (or failed to pay the correct amounts), only that it did not provide compliant wage statements showing the correct hourly rate of pay. The Court of Appeal concluded that the trial court erred in determining that defendant’s wage statements violated section 226. The wage statements showed the applicable hourly rates in effect and the corresponding number of hours worked at each rate. In the wage statements provided by defendant, the applicable hourly rates are (1) the standard hourly rate determined by contract or other agreement between the employee and the employer and (2) the overtime premium hourly rate, determined by statute, that must be added to the employee’s standard wages to compensate the employee for working overtime. These rates were plainly shown, along with the hours worked at each rate. While other formats might also be acceptable, given the complexities of determining overtime compensation in various contexts, the format adopted by defendant adequately conveyed the information required by statute. (C.A. 4th, May 28, 2021.)

Civil Procedure Cal. Medical Assn. v. Aetna Health of Cal. Inc. (2021) _ Cal. App.5th _ , 2021 WL 1660614: The Court of Appeal affirmed the trial court’s order granting defendant’s motion for summary judgment in plaintiff’s complaint alleging several causes of action, including a claim seeking an injunction for alleged violations of the Unfair Competition Law (UCL; Business & Professions Code, § 17200), filed by plaintiff after defendant implemented a policy to restrict or eliminate patient referrals by its in-network physicians to out-of-network physicians. The Court of Appeal held that an association must sustain direct economic injury to itself and not just its members to bring a UCL claim, and evidence that an association diverted resources to investigate its members’ claims of injury and advocate for their interests was not enough to establish standing under the UCL. (C.A. 2nd, April 28, 2021.)

Torts Issakhani v. Shadow Glen Homeowners Assn., Inc. (2021) _ Cal. App.5th _ , 2021 WL 1711584: In an action for personal injury action where a pedestrian, who decided to jaywalk across a five-lane highway at night and was struck by a car, sued the owner of the condominium complex she was trying to visit for negligence and premises liability for having too few onsite parking spaces for guests, the Court of Appeal affirmed the trial court’s order granting defendant’s motion for summary judgment. The Court of Appeal held that a landowner does not owe a duty of care to invitees to provide adequate onsite parking, either (1) under common law principles, or (2) by virtue of a 1978 city ordinance that rezoned the complex’s specific parcel for multifamily dwellings and conditioned that rezoning on providing a specific number of guest parking spaces. (C.A. 2nd, April 30, 2021.) n

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