Attorney Journal, San Diego, Volume 116 by Attorney Journals

SAN DIEGO

Volume 116, 2013 • $6.95

The Top Ten California Legal Ethics Rulings of 2012

Daniel E. Eaton

The Myth of the “Natural Rainmaker”

Mike O’Horo

Building Relationships with Non-Clients

Sally J. Schmidt Return on Your Law Firm Marketing Investment and Social Media

David Lorenzo 10 LinkedIn Techniques to Increase Visibility and Add New Clients

David King Keller

The Clock is Ticking; Is Your Firm Ready for the Coming Changes to Health Care?

Steven Driss

Warning: e-Discovery Missteps Can Open Up the Door to Identity Theft

Samantha Green

Craig Miller Attorney of the Month

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2013 EDITION—NO.116

TABLE OF CONTENTS features 6 The Top Ten California Legal Ethics Rulings of 2012

Read About the 2012 Cases Expected to Transcend the Specific Practice Area in Which the Case Arose. by Daniel E. Eaton

10 Building Relationships with Non-Clients

You Have a Nice Conversation, Get a Business Card and Return to Your Office. Now What? by Sally J. Schmidt

12 COMMUNITYnews

EXECUTIVE PUBLISHER Brian Topor

15 Return on Your Law Firm Marketing Investment and Social Media

EDITOR Nancy Deyo

How Do You Decide if You Should Sponsor an Event, Place an Ad in a Trade Magazine or Join a Referral Service?

CREATIVE SERVICES Skidmutro Creative + Layout CIRCULATION Angela Watson PHOTOGRAPHY Bronson Pate Vinit Satyavrata STAFF WRITERS Jennifer Hadley Bridget Brookman Karen Gorden CONTRIBUTING EDITORIALISTS Daniel E. Eaton Mike O’Horo Sally J. Schmidt David Lorenzo David King Keller Samantha Green Steven Driss Craig Miller Steven Kruis WEBMASTER Chase Jones ADVERTISING INQUIRIES info@AttorneyJournal.us SUBMIT AN ARTICLE Editorial@AttorneyJournal.us OFFICE 10601-G Tierrasanta Blvd., Suite 131 San Diego, CA 92124 P 858.505.0314 • F 858.524.5808 www.AttorneyJournal.us ADDRESS CHANGES Address corrections can be made via fax, email or postal mail.

by David Lorenzo ATTORNEY OF THE MONTH

16 Craig Miller by Jennifer Hadley

22 The Myth of the “Natural Rainmaker”

For Many Lawyers, Lawyers were Either “Natural Rainmakers” or Not. Learn the Real Truth of What it Takes. by Mike O’Horo

24 The Clock is Ticking. Is Your Firm Ready for the Coming Changes to Health Care?

If Your Law Firm Has More than 50 Employees, You’re on the Hook for Making a Number of Critical Decisions. by Steven Driss

26 10 LinkedIn Techniques to Increase Visibility and Add New Clients Learn Some New Tips on Ways to Use LinkedIn to Generate More Clients. by David King Keller

28 Warning: e-Discovery Missteps Can Open Up the Door to Identity Theft

Learn Some New Tips on Three Recent Cases Illustrating the Risk to Counsel that Fails to Heed the Importance of Protecting Personally Identifiable Information. by Samantha Green

Editorial material appears in Attorney Journal as an informational service for readers. Article contents are the opinions of the authors and not necessarily those of Attorney Journal. Attorney Journal makes every effort to publish credible, responsible advertisements. Inclusion of product advertisements or announcements does not imply endorsement. Attorney Journal is a trademark of Sticky Media, LLC. Not affiliated with any other trade publication or association. Copyright 2013 by Sticky Media, LLC. All rights reserved. Contents may not be reproduced without written permission from Sticky Media, LLC. Printed in the USA

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TOP

CALIFORNIA LEGAL ETHICS RULINGS OF

2012

By Daniel E. Eaton

Volume 9 of Ethics Quarterly abstracted 49 rulings from California state and federal courts. The issues addressed in the ten most significant ethics-related rulings abstracted in this volume (one of the cases is actually from the very end of 2011, too late to be included on last yearâ&#x20AC;&#x2122;s list) range from the discoverability of attorney-directed witness Daniel E. Eaton, Publisher of Ethics Quarterly, is a partner in the law firm of Seltzer Caplan McMahon Vitek, and a former Chairman of the San Diego County Bar Associationâ&#x20AC;&#x2122;s Legal Ethics Committee. The views expressed here are his own. Comments on the list may be sent to him at eaton@scmv.com. This Commentary original appeared in Vol. 9, Issue No. 4 of Ethics Quarterly. All issues of Volume 9, as well as a cumulative index of Ethics Quarterly, may be accessed at scmv.com.

Attorney Journal | Volume 116, 2013

statements to civility in oral advocacy to the ethical responsibilities of co-counsel brought to the team for trial. The underlying disputes in which these ethical issues were raised cover the spectrum of practice: personal injury, patent/intellectual property, ERISA, bankruptcy, family law, securities litigation, and criminal law, among others. Each case was chosen because its core holding is expected to transcend the specific practice area in which the case arose; each case was ranked based on how broadly and deeply that impact is expected to be felt in the evolving California law of lawyering.

Coito v. Superior Court

In re: Pacific Pictures Corp.

(2012) 54 Cal.4th 480 (EQ 9.3.3):

(9th Cir. 2012) 679 F.3d 1121 (EQ 9.2.4):

In this personal injury case, the California Supreme Court unanimously ruled that a witness statement obtained through an attorneydirected interview is entitled to at least qualified work product protection and may be entitled to absolute work product protection. (Id. at 499-500.) Where such a witness statement reveals the attorney’s impressions or thought processes about the case—a showing that the attorney resisting discovery must make on a case-by-case basis—the statement is entitled to absolute work product protection and is not subject to discovery under any circumstances. (Id. at 495-496.) Even if an attorney-directed witness statement does not reveal the attorney’s thought processes or legal theories, it is entitled to qualified work product protection, meaning that the party seeking discovery of the statement must show that if the statement were not produced, the party would suffer unfair prejudice in preparing its case or that the nonproduction would result in an injustice. (Id. at 499-500, citing C.C.P. § 2018.030(b).)

In a dispute in which the petitioners included the heirs of the creator of Superman, the question was whether a party waives the attorney-client privilege as to third parties over assertedly privileged documents by producing those documents only to the federal government. The Ninth Circuit held that a party does waive the attorney-client privilege, even when the government promises the party it will not disclose the documents to third parties absent court order. The Ninth Circuit concluded that allowing a party to engage in selective waiver of the attorney-client privilege to the government would not advance the purpose of the privilege, which is to encourage a client to be candid with their own attorney. (Id. at 1127-1128.)

The significance of the case—and it is, by far, the most significant ethics ruling of 2012—is that it reinforces the paramount importance of an attorney’s right and duty to treat as confidential information the attorney gathers in the process of working on a client matter. In generally shielding such statements from discovery, the ruling also underscores the duty of an attorney to gather, record, and evaluate even information that is harmful to the client’s cause. “If attorneys must worry about discovery whenever they take a statement from a witness, it is reasonably foreseeable that fewer witness statements will be recorded and that adverse information will not be memorialized. . . . This result would derogate not only from an attorney’s duty and prerogative to investigate matters thoroughly, but also from the truth-seeking values that the rules of discovery are designed to promote.” (Id. at 496-497.) In addition, in leaving undisturbed the trial court’s ruling that an attorney who used an attorney-directed witness statement to crossexamine the witness at deposition had thereby waived work product protection, the Court also reminded counsel of the consequences of openly using work product in discovery and other interactions with the opposing party. (Id. at 500.)

The significance of the case comes from its focus on the rationale of one of the core ethical principles of the attorney-client relationship: that communications between attorney and client are kept secret from others to encourage frank and open communications between them. In this case of first impression in the Ninth Circuit, the Court explained that encouraging a party to be open with his lawyer is distinct from encouraging a client to cooperate with the government. The former is promoted and protected by the federal attorney-client privilege as it now stands; the latter, absent Congressional action, is not. (Ibid.)

Valdez v. Kismet Acquisition, LLC

(S.D. Cal. 2012) 474 B.R. 907 (EQ 9.3.5): The district court reviewed a bankruptcy court order sanctioning counsel for client advice and court filings to impede the transfer of certain foreign assets. The question presented was whether the bankruptcy court was required to consider the extent of sanctioned counsel’s responsibility for the opposing party’s loss and the extent of counsel’s ability to pay the high-six-figure sanctions award. The district court held that, even though sanctions were warranted, the bankruptcy court had erred in not considering the relative fault of sanctioned counsel, on the one hand, and the fault of the client and cocounsel, on the other hand, in causing harm to the opposing party and in not considering the ability of counsel to pay in determining the size and scope of the sanctions award. The district court concluded that sanctions need to be tailored to the relative harm caused by this particular attorney and to the ability of this particular attorney to pay the amount of the sanctions. The significance of the case is that, first, it is a reminder that an attorney may be sanctioned for filing even meritorious objections solely for the purpose of delay. Motive matters. Second, the ruling suggests that in imposing sanctions, the court must consider the relative responsibility of all of those who caused harm to the opposing party or the administration of justice, including all involved counsel and the client, not just one of several participants in the misconduct. Proportionality matters. Third, in imposing sanctions, a court must consider the sanctioned attorney’s ability to pay the amount of the sanctions. Wherewithal matters. In Haynes v. City and County of San Francisco (9th Cir. 2012) 688 F.3d 984 (EQ 9.3.6), the Ninth Circuit addressed a related question of first impression in the circuit to hold that a district court must take into account an attorney’s ability to pay when imposing sanctions pursuant to 28 U.S.C. § 1927.

Kilopass Technology Inc. v. Sidense Corp.

(N.D.Cal. 2012) 2012 WL 1534065 (EQ 9.2.7): The issue in this case was whether a party, and by extension their attorney, had preserved the attorney-client privilege where: (1) outside counsel contracted with a vendor to search and sort electronic documents for privilege; (2) the list of the party’s past lawyers and law firms provided to the vendor, which outside counsel had obtained from the party, failed to include lawyers and firms that provided early corporate work for the party; (3) vendor mistakenly did not run the privilege search across all production batches of documents and did not run all search terms provided by outside counsel; (4) after receiving the production batches from the vendor just days before production was due, the party’s attorneys and paralegals conducted spot checks, but the privileged documents escaped manual screening due to the tight timeline for production; and (5) where, as a result, the party claimed that more than 1 in 50 documents the party produced was privileged. The Court held that the attorney-client privilege had not been preserved under these circumstances. The Court found that the party’s screening procedures had been unreasonable. “This is not a case where a few privileged documents in a large batch slipped through otherwise robust screening procedures. Even where a small number of privileged documents are disclosed in a large batch, privilege may be waived where the screening procedures were particularly unreasonable.” (Id. at *3, citations omitted.) The significance of the case is that it focuses attention, in the widely discussed and rapidly evolving area of the discovery of client’s electronically stored information (“esi”), on one of the attorney’s most inviolable duties: the duty to preserve client secrets. The ruling suggests that considerable care must be taken at every step of esi discovery: from selecting any outside vendor, to providing search terms and other instructions to the vendor, to reviewing the vendor’s work product before producing the information to the opposing party. The more of these steps that are later found to have been inadequate, the greater the risk a court will order a client’s most confidential information ultimately surrendered to the adverse party. 8

Attorney Journal | Volume 116, 2013

Resilient Floor Covering Pension Fund v. Michael’s Floor Covering, Inc.

(N.D.Cal. 2012) 2012 WL 3062294 (EQ 9.3.7): In this ERISA case brought by pension trust funds against the alleged successor of a sponsoring employer, the question was whether the attorney-client privilege and work product protection had been waived over a pre-litigation email sent by plaintiffs’ counsel to plaintiff-fund’s trustee that detailed plaintiffs’ counsel’s preliminary understanding of the facts of the case and the legal merits of potential claims, where the trustee forwarded counsel’s email to a non-party union official asking whether defense counsel had a conflict of interest and where, through a series of additional forwards, the email wound up in the hands of various union members and defense counsel himself. The Court found waiver, even though the original email had been headlined “Attorney-Client Privileged/Attorney Work Product.” The disclosure of the memo to the pension officials up the email chain, said the Court, had not been designed to further a joint litigation effort and was inconsistent with keeping secrets in an adversary system. The significance of the case is that it may make it advisable for attorneys to admonish clients, especially certain employees of organizational clients, not to forward confidential information from the attorney to unnecessary others. At least in federal court, even an attorney’s candid assessment of the strengths and weaknesses of a client’s position—and this logically applies to the litigation and transactional contexts alike— may wind up in the hands of an opposing party if sufficient care is not taken. The addition of the phrase “Do Not Forward” in the subject line of an email to a client representative the attorney is concerned may be tempted to share attorney information with others, may go a long way to preventing over-forwarding in the first place.

Little v. Amber Hotel Co.

(2011) 202 Cal.App.4th 280 (EQ 9.1.2): An attorney brought an action for tortious interference with the attorney’s fee lien and for interference with an attorney’s further relationship with his longstanding clients against the opposing party in the underlying action. The Court of Appeal ruled that the attorney had established that his clients had breached an enforceable contractual duty to the attorney regarding the lien when the clients settled the underlying action with the opposing party and forfeited their right to execute on the court-ordered prior fee award that was the basis of the lien. The significance of the case is that it qualifies both the client’s right to settle his cause and the attorney’s duty not to restrict that right to settle without the attorney’s consent. The attorney’s duty not to interfere with his client’s right to settle without attorney consent has been California law for nearly 100 years. (See Hall v. Orloff (1920) 49 Cal. App. 745.) But a client’s right to settle is not unqualified: “fee agreements containing reasonable limitations on the client’s authority to settle an action are enforceable.” (Little, 202 Cal.App.4th at 296, citing Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 918.) The lien set forth in the fee agreement in this case did not transfer control of settlement from the clients to the attorney. “[R]ather, it obligated the [client-] parties to honor their contractual duties to [attorney] concerning his lien right to ‘any attorney[] fee award made by the court,’ regardless of how they chose to settle the action.” (202 Cal.App.4th at 297, quoting fee agreement, footnote omitted.) And yet it was the opposing party, not the clients, that was held responsible for the lien. The opposing party was even made to pay for future business the attorney expected to lose from these clients because the opposing party induced abrogation of the fee lien, necessitating the lawsuit in which the clients were named as defendants. Beyond clarifying the scope of the enforceability of attorney liens against clients, the ruling may curb outside interference with that aspect of the attorney-client relationship.

Sands & Associates v. Juknavorian

Cole v. Patricia A. Meyers & Associates, APC

(2012) 209 Cal.App.4th 1269 (EQ 9.4.1):

(2012) 206 Cal.App.4th 1095 (EQ 9.2.14):

The California Court of Appeal held that a law firm that prevailed in a fee dispute with a client may not recover contractual prevailing party attorney fees if the firm was represented by an attorney listed on the firm’s letterhead and in attorney directories as of counsel to the firm. In light of that, there was no attorney-client relationship between the firm and the of counsel attorney representing the firm in the fee dispute. (Id. at 1297.)

The Court of Appeal in this case determined that co-plaintiffs’ counsel in an underlying action in which summary judgment was granted may be held liable for malicious prosecution even if their role in the underlying case was limited to serving as trial counsel if the case went to trial. The Court concluded that if co-counsels’ names appeared on pleadings and other filings as co-counsel of record and they were served with all filings in the case, they could be held liable if the underlying claims lacked merit. As counsel of record, putative trial counsel “had a duty of care to their clients that encompassed both a knowledge of the law and an obligation of diligent research and informed judgment.” (Id. at 1117, internal quotation marks and citation omitted.)

Beyond its comprehensive examination of the meaning and consequences of an of counsel/ law firm relationship, the significance of the case is to establish the importance of a genuine attorney-client relationship as a condition to recovering prevailing party attorney fees. A similar issue was addressed in Rickley v. Goodfriend (2012) 207 Cal.App.4th 1528 (EQ 9.3.8). In that case, the Court of Appeal held that a trial court should have considered the entitlement to fees of an attorney representing herself and her spouse in connection with post-judgment contempt proceedings in the context of a nuisance action against neighbors. In that context, it did not matter that the interests of the attorney and her spouse were indivisible and that their damages were identical. What mattered was whether the non-attorney spouse consulted the attorney spouse “in her professional capacity and whether their relationship in terms of this lawsuit, was for the purpose of obtaining legal advice.” (Id. at 1538.) If the trial court found that the answer to both of those questions was yes, the trial court was directed to grant the request for fees. (Id. at 1539.) These two very different cases demonstrate that the award of fees to a prevailing party depends in part on whether the attorney and the represented party had a genuine attorney-client relationship. (See also Kerner v. Superior Court (2012) 206 Cal.App.4th 84, where an attorneyclient relationship was found between former law firm partner’s wife and another firm attorney in the context of a lawsuit brought by the husband-attorney against his former firm. The existence of the attorney-client relationship meant that the wife was not required to answer deposition questions about the legal advice the firm attorney had given her in earlier proceedings.)

Talon Research, LLC v. Toshiba America Electronic Components, Inc.

(N.D.Cal. 2012) 2012 WL 601811 (EQ 9.1.10): Plaintiff’s counsel in this patent dispute was disqualified where three of the seven lawyers representing the plaintiff previously had had direct involvement in representing the defendant in several patent disputes involving the same kind of technology as that in the current dispute. The Court concluded that the confidential information the attorneys may have received in the previous proceedings would be relevant in the current action. It did not matter that the patents in the previous and current proceedings were not identical. Imposing a literal matching requirement, said the Court, would emasculate Rule of

The significance of the case is to impose on attorneys assigned even a specific and limited role in a client matter indivisible duties to a client and potential liability to opposing parties along with the attorney with primary responsibility for handling the matter. The Court of Appeal rejected putative trial counsel’s reliance on Rule of Professional Conduct 3-110(C), allowing an attorney with insufficient skill to join with counsel reasonably believed to be competent, as a basis for dismissing counsel from the malpractice action in an anti-SLAPP motion. The Court of Appeal acknowledged that California law allows the association of counsel and division of duties among counsel in handling client matters. An attorney associated into a matter, regardless of role, assumes the duty to be informed about the matter and risks liability if the matter turns out to have been maliciously prosecuted in whole or in part or otherwise mishandled. (Id. at 1117.) At least in litigation, there are ways for an attorney to protect himself from assuming duties and potential liability prematurely. “Attorneys may easily avoid liability for malicious prosecution without having to engage in premature work on a case if they refrain from formally associating in it until their role is triggered. Attorneys may also avoid liability if they refrain from lending their names to pleadings or motions about which they know next to nothing.” (Id. at 1119-1120.)

Professional Conduct 3-310(E). That rule prohibits an attorney from accepting a matter adverse to a former client without the former client’s informed written consent where the attorney has obtained confidential information material to the current representation. (Id. at *6.) The significance of the case is that it was a case of first impression addressing the Rule 3-310(E) substantial relationship test to successive patent actions. A case decided later in the year in a different California federal district addressed a similar issue. In Advanced Messaging Technologies, Inc. v. Easylink Services International Corp. (C.D.Cal. 2012) 2012 WL 6618239 (EQ 9.4.6), the Court concluded that disqualification of counsel was warranted even where, since the former representation, the patents at issue had been reexamined by the U.S. Patent and Trademark Office and the claims of the patents had been altered to varying degrees. Continues on page 25 Attorney Journal | Volume 116, 2013

BUILDING RELATIONSHIPS WITH NON-CLIENTS by Sally J. Schmidt

It’s a typical scenario. You meet someone new at an association meeting or networking reception. You have a nice conversation, get a business card and return to your office. Now what?

or many lawyers, taking the next step with a prospective client is a formidable challenge. Of course, there are passive activities that can and should be done, such as adding the person to your contact list, putting him or her on lists to receive appropriate firm materials like newsletters or seminar invitations, etc. But if you are interested in truly advancing the relationship, you will need to make a personal effort to follow up.

Your objectives in moving forward are two:

To position yourself as a resource, so the prospect concludes that having a relationship with you provides value; and

To start building a personal relationship, so the prospect sees you as a trusted friend or authority. Some activities will accomplish one objective; others will contribute toward both. I have outlined below 20 different action steps that can be employed to follow up with new relationships, from the more passive to the more aggressive. What you do will depend on your personality, your comfort level, and how well you know the prospective client.

Attorney Journal | Volume 116, 2013

TWENTY NEXT STEPS 1

Fire off a follow-up note. Send a personal (hand-written) note saying it was nice to meet the contact, and mentioning something specific about the encounter or discussion you had. Send some follow-up information. Better yet, think of something that would be of interest to send the prospect related to your conversation, such as an article, form, checklist or white paper. Invite the contact to participate in a firm activity. Don’t rely on the firm’s institutional invitations to open houses, seminars or roundtables; make a personal call. In some instances, you can create an event specifically to engage one or more good prospects, like a roundtable discussion with some existing clients in the same industry. Send substantive firm marketing materials along with a personal message. A firm newsletter with a note saying, “Thought you might be interested,” will actually get reviewed. Interview a prospect for an article. Let’s say you are writing a piece for your local business journal on legislative proposals that will affect small businesses. You could interview your new contact as a source, include a quote, if appropriate, and send a copy once it’s published. Offer to provide some free information. Let your prospective client know that you are willing to give a little helpful advice at no charge, whether it’s a budget number or a response to a quick question. Invite your contact to participate in a survey. For example, you could develop a questionnaire for people in the real estate industry about their economic predictions for the next year, and include prospects as well as clients in the process. Of course, you should then provide them with the results at no charge.

Sally J. Schmidt is President of Schmidt Marketing, Inc. in Edina, Minnesota, offering marketing services to law firms. The company’s consulting clients have included over 400 law firms throughout the United States, Canada, Mexico, Europe, New Zealand and Australia, ranging in size from two to over three thousand attorneys. Reprinted from December issue of Law Practice with author’s permission. sallyschmidt@ schmidt-marketing.com.

Ask the contact to provide you with some input. If you have plans to write an article or give a speech, ask your prospect for topic ideas.

Look for ways to use or recommend their products or services. If a prospect owns a restaurant, patronize the establishment. If prospective clients offer services (e.g., consulting, technology, accounting), put their names on short lists of potential suppliers for the firm’s, or other clients’, needs.

Entertain your contact. Invite him or her to play golf or attend a ball game with you.

Ask the prospect to co-author an article. (See #16)

Invite the prospect to lunch or dinner. Be prepared to ask about business or professional areas of mutual interest.

Ask the contact to be a speaker or serve on a panel for a firm or outside conference. In addition to allowing you to work with the prospect, you will be helping him or her professionally.

10 11

Invite the person to join a group that would be of interest. This could be an association, a committee or even a basketball league. Offer to review some company information and provide feedback at no charge. Depending on your practice area, this could be the company’s business plan, a standard contract or an employee handbook.

Make connections for the prospect. Offer to introduce your new contact to an accountant or a colleague, for example.

Invite the prospect to be on a planning or steering committee. If your practice area is considering offering a seminar series for financial institutions, for example, you could invite a new banking contact to serve with a group of other industry clients or prospects to help devise the program format and content.

Ask the prospective client to co-present at a seminar with you. Working side by side with the contact to develop and present the material will help you build a relationship while demonstrating your substantive expertise. This also positions the prospect professionally.

Offer to come to the contact’s place of business to provide some free training or conduct an audit at no charge. This gets you into the business and playing the role of a counselor. Ask if you can take a tour of the company. Showing an interest in the prospective client’s business, whether it’s a car dealership, office building or construction site, will demonstrate how you like to interact with clients, make you seem accessible, and likely give you some information that could be useful in developing the relationship further.

CONCLUSION Presuming the circumstances are right for a prospect to become a client at all (needing your services), it still takes time to turn someone from prospect to paying client. Forwarding a relationship with a prospective client requires sustained followup and interaction. When selecting your follow-up activities, the most effective will be those that allow prospects to become invested in your firm or your relationship, make prospects look good or advance their own interests, and provide added value—information, activities or even fun. n Attorney Journal | Volume 116, 2013

COMMUNITY news nHiggs Fletcher & Mack is pleased to announce that Laura Buckley has moved from associate to partner. Buckley joined the firm in 2009 and practices in all areas of federal and state taxation. Buckley represents individuals and businesses before the Internal Revenue Service and the state taxing agencies in the United States Tax Court and other federal and LAURA BUCKLEY state forums. She also advises and represents creditors and debtors in business disputes and insolvency matters, including discharging taxes in bankruptcy. Prior to joining Higgs, Buckley was an IRS Chief Counsel attorney and a Special Assistant United States Attorney where she represented the Internal Revenue Service in tax and bankruptcy matters. Buckley served as Chair of the San Diego County Bar Association’s Taxation Section from 2010-2012, and she is currently on the leadership board of the California Bar Association’s Taxation Section, Corporate and Pass-Through Entities and Young Tax Lawyers Committees. Buckley was a featured speaker at the 2012 Annual California Tax Policy Conference, and recently published “Gliding Off the Fiscal Cliff Towards Taxmageddon” in the Fall 2012 Edition of California Tax Lawyer. nFish & Richardson has been named a top national trademark law firm for the third consecutive year by World Trademark Review (WTR) 1000, a guide to “the world’s leading trademark legal services providers.” Fish’s Southern California office, based in San Diego, also received the “silver band” designation for “the strong collection of trademark LISA MARTENS practitioners (that) seamlessly manages the gamut of brand-related mandates…a collaborative, dedicated team serves clients in the finance, software and fashion industries, among others.” San Diego Fish partner Lisa Martens was individually mentioned by WTR as “perceptive and business-minded,” and that she supplies “further bench depth and is lauded for her deft handling of contentious mandates.” The WTR 1000 is a comprehensive and definitive list that covers more than 50 global jurisdictions. Firms qualify for inclusion based on the depth of their expertise, market presence, and level of work. Individuals qualify based upon positive feedback from market sources with knowledge of their practice and market.

Attorney Journal | Volume 116, 2013

nButterfield Schechter LLP celebrated its 15-year anniversary recently with a private concert for clients and business colleagues with special musical guest and firm client, Jorma Kaukonen. Jorma is a founding member of Jefferson Airplane and Hot Tuna as well as a member of the Rock and Roll Hall JORMA KAUKONEN AND of Fame. Kaukonen treated BUTTERFIELD SCHECHTER PARTNERS guests to an evening of acoustical tunes from his vast repertoire. Partner Marc Schechter, a personal friend of Kaukonen, is a graduate of Rowan University in New Jersey with a B.A. in Music (Guitar). Schechter said, “It was a great way to celebrate our firm’s 15-year anniversary with such an esteemed guest of honor, certainly different than the usual cocktail party.” Butterfield Schechter is San Diego’s largest law firm focusing its practice on ERISA and employee benefits law matters. nBrown Law Group, a leading San Diego business litigation boutique law firm, has named attorney Suzanne K. Roten as partner. Ms. Roten, who has more than 22 years of legal experience, joins founder Janice Brown and partner Stacy Fode as the third partner in the law firm. Since Ms. Roten joined the firm she has worked with Brown Law Group SUZANNE K. ROTEN clients in the areas of federal and state employment law compliance. In addition, she provides leadership in the areas of discrimination, wrongful discharge, sexual harassment, retaliation and wage and hour disputes in state and federal courts and before governmental agencies. Ms. Roten’s expertise includes disability discrimination and reasonable accommodation, and in public accommodation compliance under Title III of the Americans with Disabilities Act. She provides assistance with executive employment contracts, arbitration agreements and confidentiality agreements. Prior to joining Brown Law Group, Ms. Roten worked as a senior associate with the law firm of Wimberly Lawson Wright Daves & Jones defending clients in employment discrimination and wrongful discharge lawsuits and before the EEOC, DOL, and the Tennessee Human Rights Commission. Prior to that position, Ms. Roten worked with the law firm of Heller Ehrman White & McAuliffe in Palo Alto and Menlo Park, CA.

COMMUNITY news

BEN COUGHLAN

PARISIMA ROSHANZAMIR

nThe Gomez + Iagmin Law Firm is proud to announce the addition of two new trial lawyers, Ben Coughlan and Parisima Roshanzamir. Ben Coughlan is a trial attorney devoted entirely to representing individuals who have suffered catastrophic personal injuries. He began working for The Gomez Law Firm in 2011 as a summer associate. Ben earned his Juris Doctorate from the University of San Diego School of Law. With The Gomez Law Firm, he has worked extensively on issues involving traumatic brain injuries. Parisima Roshanzamir is a trial attorney who dedicates her time, knowledge, and energy to helping those who have suffered a loss in a catastrophic personal injury. She completed her undergraduate studies at San Diego State University, earning a B.A. in Economics.

nKilpatrick Townsend & Stockton is proud to announce that Kandace Patton Watson has been chosen as a member of the 2013 class of Fellows, to participate in a landmark program created by the Leadership Council on Legal Diversity (LCLD) to identify, train, and advance the next generation of leaders in the legal profession. Watson heads the Mergers and KANDACE PATTON WATSON Acquisitions, Securities and Corporate Team in San Diego and is the co-chair of the Life Sciences and Medical Device Group. She has extensive experience representing companies, corporate boards and executives in complex transactions, in numerous industries, with an emphasis on healthcare and pharmaceutical, biotechnology, Internet and media, software and technology, and food and beverage companies. Founded in 2009, the Leadership Council on Legal Diversity is a growing organization of more than 200 corporate chief legal officers and law firm managing partners dedicated to creating a truly diverse legal profession. Its goal is to help its Member organizations find, hire, retain, promote, and engage the best talent.

PAUL CAPPITELLI

nPaul Cappitelli, the former head of the California Commission on Peace Officer Standards and Training, widely known as POST, and a retired captain of the San Bernardino County Sheriff’s Department, recently joined Best Best & Krieger LLP as a law enforcement specialist. A 29year veteran of the sheriff’s department,

Cappitelli will work with a team of attorneys from the firm’s nine offices across California and in Washington D.C. who focus on law enforcement issues. Cappitelli, who will be based in the firm’s San Diego office, grew up in Ontario in Inland Southern California, and first joined the San Bernardino County Sheriff’s Department in 1978. During his time with the department, Cappitelli worked in various capacities, including patrol, traffic, custody, homicide investigation, public affairs, gang enforcement and academy director. He retired in 2007 at the rank of captain. Cappitelli is a member of several law enforcement organizations, including the International Association of Chiefs of Police, the National Sheriff’s Association and the California Peace Officers’ Association. nThe William B. Enright Inn of Court recently hosted the 2013 Joint American Inns of Court Annual Dinner. The evening began with the presentation of a new award created by the five Inns to pay tribute to lifetime achievement in the American Inns of Court. The American Inns of Court movement came to San Diego in 1984 with the creation of the Louis M. Welsh Inn of Court. Four other Inns were later formed: the William B. Enright Inn of Court, the J. Clifford Wallace Inn of Court, the William L. Todd, Jr. Inn of Court, and the Fiorenzo V. Lopardo Inn of Court. The Americans Inns of Court’s core mission is to increase civility and professionalism in the practice of law. The Inns named the award “The Honorable William B. Enright Lifetime Achievement Award” and presented it to Judge William Enright as its first recipient for his substantial efforts in bringing the American Inns of Court movement to San Diego. The keynote speaker at the dinner was Kathleen M. Sullivan Esq., former Dean of Stanford Law School and Harvard Law School Professor. Higgs Fletcher & Mack partner Susan M. Hack is the current president of the Enright Inn of Court and served as the dinner’s emcee with nearly 300 attorneys and judges from the five Inns in attendance.

Have a Press Release you would like to submit for our Community News? Email it to PR@AttorneyJournal.us

Attorney Journal | Volume 116, 2013

Return on Your Law Firm Marketing Investment By Dave Lorenzo

Dave Lorenzo helps solo attorneys, large law firms and small independent law practices make a great living and live a great life. People say his down-to-earth personality reflects more of his street smarts than his Ivy-League education. He can be reached at 888.692.5531.

How do you evaluate law firm marketing investments? How do you decide if you should sponsor an event, place an ad in a trade magazine or join a referral service? The best way to make this decision is to look at the potential Return on Investment from each initiative. There are three things to take into account when looking at Law Firm Marketing ROI. They are: • Target Client and Referral Source Profile • Lifetime Value of the Relationship • Cost of Acquisition of a New Client These are all complex ideas which must be covered in detail but here is a brief summary:

Target Client and Referral Source Profile If you are targeting consumers (family law, criminal law, immigration), your approach to marketing will be different from a lawyer who is targeting companies as a client. Once you know who your ideal client is, it becomes easier to attract them with your marketing. Referral sources are important to all lawyers and you must market to them as heavily as you would market to a prospective client. This marketing should be measured in exactly the same way as you measure direct-to-client marketing initiatives.

Lifetime Value of the Relationship Once you have attracted and engaged a client or referral source, how much is that relationship worth to your law firm? A client (or referral source) who brings you 10 matters each year for a value of $100,000 per year is worth far more than 100 clients who bring you one matter valued at $1,000 during your lifetime relationship with them. You can spend more to attract the client with 10 matters per year because you will receive a better return on your investment. Knowing this lifetime value number is critical to determining how much to invest in marketing. High value targets can withstand significant investments.

Cost of Acquisition What is it going to take to attract this client? As stated above, you can spend more to attract better clients. But knowing what it is going to cost to do so is important. If you are targeting corporate clients, there is a good chance they already have a lawyer. It is much more difficult to unseat the incumbent in the relationship than it is to establish a business relationship with someone who has no lawyer. Understanding client acquisition cost is important to determining your marketing budget. We just touched on these important metrics. Give them some thought. How will they impact your law firm marketing decisions? n

Attorney Journal | Volume 116 2013

MILLER Craig Miller’s Solo Practice Is Born of Instinct and an Independent Spirit By Jennifer Hadley

raig Miller is honest when he talks of mourning the recent passing of his partner and mentor of 22 years, Harvey Levine. When Levine, nationally recognized trial attorney and expert in insurance, finally retired from practice in 2010, Craig Miller was his only partner in Levine & Miller. Although he admits to missing Levine deeply, he’s grateful that throughout the 22 years he spent working with Levine, he also remained first and foremost a hands-on attorney. “I fight and battle to win. By that I mean it is me doing the fighting. I prepare the complaint, write and oppose the motions, prepare the discovery, conduct and defend the depositions, try the cases if they need to be tried, and handle every aspect of the appeals. I do very little delegation on my cases and I do not come in at the end for a star turn. I am familiar with every aspect of the case every step of the way,” Miller says.

“I fight and battle to win.” For his clients—who run the gamut of municipalities, business entities and individuals—Miller’s fiercely competitive nature has resulted in numerous seven figure results in settlements and trials against large insurance companies who he says, “have decided, usually arbitrarily, that they will not fulfill their obligations under the insurance policies.” In

Attorney Journal | Volume 116, 2013

fact, several of his published cases have hundreds of citing references, and are considered to be benchmark cases in the Insurance Bad Faith arena. However, unlike many attorneys, Miller didn’t have lifelong dreams of becoming a powerhouse attorney. He just knew that whatever he did, he was going to have to make sure that he didn’t need to rely on others to be a success.

Self Reliance as Foundation for Success Growing up in Detroit, Miller says it was his father who instilled in him his independent spirit. “My dad grew up in the Great Depression and inculcated in me a great work ethic and high moral standards,” Miller says. “He started his own construction company at age 40. I went to work with him when I was 8. We bought lots, built homes on them and hoped we sold them,” he says. “My dad was the first to tell me that I couldn’t rely on anyone to make a living. He emphasized the risks of depending upon on others to take care of you.” It was Miller’s mother however, who pushed Craig to go to law school. “After I graduated from college, the economy was a rollercoaster. My mother encouraged me to go to law school so that I might have a better future and the ability to find work outside the Detroit area if necessary. I went, and she was right.” After graduation from Southwestern University School of Law in 1984, it was time for Miller to put his independent spirit to the test, and look for work as an attorney. “After finishing law school, I came to San Diego to look for work.

ATTORNEY

OF THE MONTH

2013

“Craig is one of the smartest attorneys I’ve fought against. He’s a gentleman, but he’s very tough, and very professional. When you’re dealing with Craig, you really have to bring your A game.” says attorney Mark Flory, Partner with Harrington, Foxx, Dubrow & Canter, LLP. I had done very well in school, but I knew absolutely no one here. I went door-to-door, handing out my resume to law firms. After several months, I was given a part-time job with a desk in the copy room in the office of a solo practitioner,” he says of his entrance to the field of law. Eventually, he wound up working for a defense firm, where he stayed for several years before receiving a career changing phone call. “At the defense firm, there were probably 15 attorneys. One of the attorney’s secretaries had left the firm and gone on to work with Harvey Levine. Evidently, she liked my work, and had recommended me to Harvey. I got a call to come and interview with him even though I had no experience doing plaintiff’s work. I have to say, that was pure luck,” he adds. However, going to work with Levine was not going to be a meal ticket for Miller. “Gaining his trust and faith was not easy. He was an extraordinarily demanding guy, who was straightforward and bottom-lined. But I immediately knew that this was a great place to work. I felt like I was representing the right people,” Miller adds

Craig Miller and Associate Attorney Patrick Calhoon.

Attorney Journal | Volume 116, 2013

of transitioning to plaintiffs’ work. Moreover, his new mentor was really good at “making you feel like the odds weren’t against you, but were against the insurance companies,” he says. “Once I was exposed to the complexity and variety of the work, I was hooked and I knew that if I applied myself, and committed to learning, I would be doing good work,” he continues. Miller indeed did a lot of good work. Although he spent years observing Harvey’s “enormous skills and intellect,” Miller was always a self-proclaimed “worker bee.” In fact, throughout the 22 years he worked with Levine, Miller always maintained his own cases, not only due to his fiercely independent nature, but also due to inherent aptitudes for writing, speaking and fighting, three major traits necessary to be a successful attorney.

Litigation as a Natural Fit “There are three major tools that serve me as a litigator,” Miller says. And in his opinion, they aren’t traits that can necessarily be taught. “I have loved to read my entire life. Being a voracious reader helped me to become a great writer. As a result, I’ve written my way out of lots of problems,” he jokes. But in all seriousness, Miller firmly believes that successful attorneys have to have a natural aptitude for words. From reading, comes better writing, and from writing, comes great speaking. “Fortunately, I have a knack for words. Speaking and writing come naturally to me,” he says, which is at least partly responsible for his numerous successes with clients. However, without his inherent competitive nature, reading, writing and speaking wouldn’t have earned him an AV Rating from Martindale Hubbard, nor would it have earned him such widespread respect in his industry. By way of example, attorney Mark Flory, Partner with Harrington, Foxx, Dubrow & Canter, LLP in Los Angeles said of Miller, “Several years ago, I defended a large and contentious insurance bad faith case that Craig prosecuted. It was a very complicated case with a great deal of money at stake and high emotions in play. Craig is one of the smartest attorneys I’ve fought against. He’s a gentleman, but he’s very tough, and very professional. When you’re dealing with Craig, you really have to bring your A game.” Miller’s professionalism coupled with his tenacity has indeed served him well. “I work hard for my clients and I have an established history of securing excellent results,” Miller says. “The results are the byproduct of a very competitive nature, and tons of experience.” But his results extend far beyond monetary rewards for clients and the occasional six figure

The Miller Family: Phil and Karolyn; Craig, Missy, Owen, Oliver, and Pokie.

referral fee to fellow attorneys; indeed, they extend to attorneys he will likely never meet. For example, in Mathews v. Government Employees Ins. Co. 23 F.Supp.2d 1160 (S.D.C.A 1998), Miller “represented a class of individuals against Geico Insurance Company, arising out of its failure to inform job applicants that it was using credit reports to deny employment. It has 318 citing references and established important guidelines regarding the ‘reasonable procedures’ defense in actions based on the Fair Debt Collection Act,” Miller recounts. Several years later, Miller again helmed a lawsuit that would further solidify his reputation as an attorney to be reckoned with in the field of Insurance Bad Faith. “One of my published cases, Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197 has over 454 citing references, (including 43 cases and 170 appellate court documents) and is considered a benchmark case in the insurance bad faith arena. The actual damages in the case were only $35,000 but the jury awarded a total over $1.1 million dollars in damages against the insurance company for its failure to promptly and fairly pay insurance benefits to the victims of the 2003 Cedar Fire,” Miller explains. Naturally, Miller’s clients were ecstatic with the results he fought hard to win for them, as they were able to build a new life. Elsa Major says “We were in a big mess, having lost our home and all of our possessions in the wild fire. Our insurance company failed us. As soon as Craig took over, all of our worries evaporated. Craig worked tirelessly on our behalf before, during, and after our trial. Because of Craig’s tenacious efforts, our case

was a complete success and the verdict was upheld through several appeal attempts. We are forever grateful.” The Major case was unique in that it became the blueprint for how to maximize damages in bad faith, after State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003). That case, wherein the U.S. Supreme Court held that the due process clause should limit punitive damage awards to less than ten times the size of compensatory damages, was widely hailed as a blow to trial attorneys and a coup for large corporations. Yet, Miller’s victory in Major v. Western Home Insurance Co., brought to light ways for attorneys to increase the ratio of rewards to include emotional distress. The case has served to “empower attorneys again,” Miller remarks. Based on the results Miller earns for his clients, it’s certainly not surprising that he’s a Top Rated Lawyer in Insurance Bad Faith, in San Diego Magazine. Nor is it any wonder that he serves as the Chairman of the San Diego Bar Association-Insurance Bad Faith Section. While Insurance Bad Faith is certainly the bulk of his caseload, Miller has also represented municipalities including the City of San Diego, Carlsbad and Newport Beach in disputes, as well as business entities including Jenny Craig, Guest Services. More recently, he’s found working on elder abuse cases to be incredibly rewarding as well. “I recently represented several very elderly people who were scammed out of their entire savings by a financial broker. The problem with the case was that there was very little insurance money available, and many claimants on the policy. The plaintiffs’ lawyers agreed to work together at the mediation, rather than Attorney Journal | Volume 116, 2013

“I’m looking forward to developing the firm to where we handle great cases for great clients who badly need our specialized service” says Miller.

helping me out,” he says. As far as the future is concerned, Miller says, “I’m looking forward to developing the firm to where we handle great cases for great clients who badly need our specialized service. I am not intent on creating a large firm with a lot of moving parts. My concern is always in providing value.” n

pursue their claims on an individual basis and thereby leave some claimants without any recovery,” Miller says. “It was the best and most satisfactory result we could have obtained for all concerned,” he explains.

Although Miller has always relied on his own hard work and natural aptitudes for writing, speaking and fighting for the benefits of his client, he does not shy away from giving praise to those who have motivated him to continue to work hard. “Harvey often said that if he ever needed to hire an attorney to represent him, it would be me,” he recalls fondly. As a way of paying forward the mentorship he received from Levine, Miller strives to provide the same sort of mentorship to fellow attorneys. Kevin Wheeler, Partner with Higgs, Fletcher & Mack LLP, says “Craig Miller hired me as a law clerk over 15 years ago while I was a law student. From the beginning, he was my mentor, both professionally and personally. Craig has always been able to boil away the irrelevant details and focus on the important issues. His laser-like focus is something I still aspire to. To this day, I continue to employ what Craig has taught me through the years.” Miller’s guidance and mentorship also extends to Patrick Calhoon, associate attorney at the Law Offices of Craig Miller. “I clerked for Craig through most of law school. He taught me to think like a lawyer and to fight hard. After graduation, I went off to work for other firms but I quickly realized I had worked with the best. Eventually, the opportunity arose to come back and work with Craig, and I jumped at the chance. I learn something new every day. He’s the real deal,” Calhoon says. In addition to Harvey Levine, Miller also says that his family deserves a great deal of credit for driving him to be the best attorney he can be. Raising his oldest son, Owen, as a single father for five years “made me a better person in every way. In fact, I never did feel quite right until Owen was born. After that I had a place in the world,” he says. Likewise, his youngest son, seven year old Oliver, “is the most competitive little spit fire in the world, and backs down from no one and nothing,” he says proudly. Deserving equal credit, Miller claims, is his wife Melissa. “On our first date, she told me that her role model was Mother Theresa, and being a skeptical lawyer, I didn’t quite believe it. Over the last nine years, she has set me straight. She is the most wonderful mother and stepmother in the world,” he adds. Miller is enthusiastic about the October 2012 opening of the Law Offices of Craig Miller and what is in store next. “I have a great legal assistant and an ambitious young attorney

Attorney Journal | Volume 116, 2013

EXPERIENCE

Miller Time

» EDUCATION

• University of Wisconsin, Madison (B.S.F.A.) 1981 • Southwestern University School of Law. J.D. 1984 - Law Review

» AWARDS

• American Jurisprudence Awards: - Contracts - Torts - Civil Procedure • A.V. Rated highest for legal ability and ethics for 13 years in a row • San Diego Magazine March 2013: Top Rated Lawyer—Insurance Bad Faith

» PROFESSIONAL ASSOCIATIONS

• Chairman: San Diego Bar Association -Insurance Bad Faith Section • Admitted to practice before all State and Federal Courts in California • Admitted to practice before U.S. Supreme Court

Contact: Craig Miller 225 Broadway, Suite 1310, San Diego, California 92101 Cmiller@craigmillerlaw.com | www.craigmillerlaw.com (619) 231-9449

Business Disputes Mass Torts Product Liability Serious Personal Injury Wrongful Death

THE BAR HAS BEEN RAISED.

Committed to extraordinary results, for ordinary people.

Yolanda s. Walther-Meade 619.237.3490 655 West Broadway | Suite 1700 San Diego, CA 92101

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Attorney Journal | Volume 116, 2013

The Myth of the

“Natural Rainmaker”

By Mike O’Horo

“She’s a natural. You either have it or you don’t.” In 20 years of coaching attorneys, I frequently heard remarks like this, where “natural” referred to rainmaking ability. For many lawyers, it was accepted as an article of faith, not requiring substantiation. Lawyers were either “natural rainmakers” or not. This belief is tantamount to suggesting that really successful attorneys are “natural lawyers.” If true, you’d have first-year attorneys who could try cases or lead complex transactions shortly after joining the firm. Patently absurd, it insults the hard-won skills and experience of seasoned lawyers, who honed their craft for decades. There are no naturals at the top levels of anything. In many fields, some people begin with natural advantages, e.g., young athletes who are stronger, faster, more coordinated than others. Or musicians who pick up an instrument and play it.

Professionals earn their capability Natural proclivity is fine for hobbyists. Making it as a professional, where only a small percentage can succeed, requires a long, 22

Attorney Journal | Volume 116, 2013

rigorous process of gaining experience. Malcolm Gladwell’s books say that expertise requires 10,000 hours of “focused practice, coaching and feedback.” At 2000 - 2500 hours worked per year, it’s no surprise that it takes four or five years of practice before attorneys have real “lawyering” capability. “Rainmaking” is a comfortable euphemism for “selling.” Selling is a profession that requires knowledge, skill, training, and experience, just like law. For 20 years, putative “naturals” thrived in what the legal media describe as a perfect storm of the due process explosion, deregulation, and the litigation boom creating twenty golden years of profitability for law firms. A Seller’s Market occurs when you have consistently higher demand than perceived supply. During the Golden Age of Law Firms, “rainmakers” enjoyed favorable business conditions that will never be replicated. In a seller’s market, one merely needs to show up consistently and accept the orders. Running around in a storm with a bucket is not rainmaking, but receiving kudos for getting wet every day while your

colleagues stayed inside, warm and dry. Success owed more to perseverance than proficiency. Persistence was sufficient.

“Competition” was an abstraction When there’s plenty for everyone, “competition” is an abstraction. If you don’t get this case or deal, you’ll get another one. Previously, you had 100 lawyers competing for 150 cases. Now, it’s 150 lawyers competing for 100 cases. Failing to get this case or deal more likely means getting no case or deal. Fierce competition means it’s a zero-sum game, i.e., business you get is at another lawyer’s expense. Showing up remains necessary, but is no longer sufficient. Lawyers with sales acumen will outshine those who rely on mere persistence. These conditions will reveal the rainmakers. The nature of “demand” has changed, too. We’re also seeing narrow demand at the top, for the top-tier legal stars who have a rare ability to solve high-stakes, high-value problems reliably, even artfully. However, it’s the tiniest slice of the legal service market, and irrelevant to most lawyers, whose skills are now equalled by countless competitors’.

Succeeding in a Hyper-Competitive Market The future belongs to lawyers who establish and protect differentiated market positions, and win head-to-head sales competition. If you doubt that, look at the top four consulting firms, whose service offerings are indistinguishable. What capability does Deloitte offer that PWC, KPMG or E&Y can’t? In mature categories, service offerings don’t determine competitive success; marketing and sales prowess do. Lawyers who embrace the “natural rainmaker” notion choose to believe that these skills cannot be learned. Part of this is simple self-interest, driven by fear. After all, if rainmaking is the province of “naturals,” and I’m not one, I can’t be expected to make rain. I don’t want to operate in a world to which I’m not well-suited, subject to rejection, frustration and humiliation— all at great cost in time, energy and psychic bruising. I want to believe in “naturals” (or anything else that frees me of this frightening obligation). During the 25-year seller’s market, those who were persistent and resilient in the face of rejection ‘naturally’ did well. Studies on lawyer personalities consistently show that up to 80% of lawyers are introverted thinkers who are terrified of rejection, so being a bulldog probably can’t be taught. But being a bulldog doesn’t make you a natural rainmaker. In a Buyer’s Market, tenacity is still necessary, but is no longer sufficient. The winners in today’s revenue-generation game are those who embrace disciplined decision-management skills akin to their lawyering skills. Such techniques can be learned by any lawyer, and are actually better suited to more introverted personalities. If you look at Accounting, Consulting, and other mature professional services where it’s been proven conclusively that these processes can be taught, you’ll see that, in a buyer’s market, the introverts can make rain as effectively as do the

bulldogs. Some firms and lawyers behave as if the recession will end soon and things will return to “normal.” This is more the product of deluded hope than astute observation. (If things return to what has been normal for 20 years, once again, I won’t have to contribute to revenue-generation.)

Welcome to the “Buyer’s Market” As Dan DiPietro, head of Citi’s law firm group, is widely quoted of late: 1. Demand for legal service, especially for full-price US law firms, is trending downward, 2. Billing rates are trending downward, 3. Cost-reduction strategies (by which PPP levels were sustained in 2009-2010) are exhausted and not repeatable, and 4. Firms and lawyers that succeed going forward will do so at the expense of their competitors. These are classic signs of a mature business category, which means the shift from a seller’s market to a buyer’s market is structural and permanent, and that lawyers now permanently face the harsh competitive reality that their clients have wrestled with for decades. The business press describes this as the “new normal.” Based on other industries’ experience with boom/ recession cycles, this is a compelling argument, unless you believe that law somehow remains immune to macro business forces. Some forward-thinking law firm leaders believe that diminished demand is only half the threat. The other half is the growing non-law-firm competition. Even if the economy recovers quickly, more demand will be absorbed by Legal Process Outsourcing, technology solutions replacing routinized legal work, and clients keeping a larger percentage of their work in-house. If you accept that the rules have changed forever, you’ll invest in preparing current revenue-generators to modify their approach to better align with the Buyer’s Market, where their “pitch” mentality now turns off buyers. Ironically, the personalities of many lawyers who have never developed business before are better suited to the more subtle approaches that succeed in a Buyer’s Market. The upshot of all this is that the revenue-generation game for lawyers has shifted from product/service capability to marketing/sales capability. Relying on a handful of part-time, opportunistic rainmakers is dangerous. Accept, as do all your clients, that marketing and sales are survival-level business functions that you’d better take seriously. n Mike O'Horo is a serial innovator in the law business. His current venture, RainmakerVT, is the world's first interactive online rainmaking training for lawyers, by which lawyers learn how to attract the right kind of clients without leaving their desks. For 20 years, Mike has been known by lawyers everywhere as The Coach. He trained more than 7000 of them, generating $1.5 billion in new business. Mike can be reached at mikeohoro@rainmakervt.com Attorney Journal | Volume 116, 2013

I know we’re just barely getting to the end of tax season, but that means that we’re also well into the second quarter of 2013. Consequently, that means that we are less than 9 months from ringing in the Affordable Care Act (ACA) along with the New Year. So while I hate to be the bearer of bad news, it’s my duty to remind you there are a lot of decisions your firm will need to make in terms of health care coverage in order to be in compliance by the December 31, 2013 deadline.

The Clock Is Ticking: Is Your Firm Ready for The Coming Changes To Health Care? by Steven Driss Steven Driss is President of Lifeline Employee Benefits in Southern California. Lifeline Employee Benefits was established in 1985 to help businesses identify and purchase affordable health insurance, life, disability and other group insurance. Steve has dedicated the last year to helping businesses of all sizes begin the transition to ObamaCare. For additional information visit www.health-quotes.net or contact Steven directly at 800-328-1557 or via email at steve@health-quotes.net

Indeed, effective January 1, 2014, massive changes as a result of the ACA, aka “ObamaCare,” will become our new reality. To put it simply, if you haven’t begun hammering out how your firm will handle these changes, now is the time to get started. Law firms with less than 50 employees have fewer adjustments to make. However, each month, new rules and regulations are coming out, including penalties for failing to comply, so regardless of the size of your firm, if you haven’t sat down with an expert in transitioning to ObamaCare yet, make that appointment now. If your law firm has more than 50 employees, you’re on the hook for making a number of critical decisions. Are you going to provide coverage? Or are you considering eliminating coverage and leaning towards paying penalties? Let’s face it; paying for employee health care isn’t cheap. In some cases, paying the penalties for not providing health care may be more cost effective than offering coverage to all employees. Whether you decide to continue to offer health care coverage, or to send employees to the exchanges, if you haven’t yet met with a broker to examine the advantages and disadvantages of each option, there is no time to waste. (By way of example, I’ve been meeting with some firms since late 2012 to begin the transition process, and continue to meet regularly with them as new updates and requirements are rolled out.) To date, there are four major considerations that you’ll need to weigh before the end of the year. Here’s how they break down:

1. Assessing Penalties Firms with 50 or more full-time equivalent employees that don’t offer health coverage will be subject to penalties (excluding the first 30). That means that if you have 60

employees, failure to provide coverage may result in a penalty of up to $60,000 ($2,000 penalty on 30 employees). However, in certain cases, it may make sense for employers to opt out of offering coverage, due to the 9.5% cap on employee contributions. For example, consider an employee who earns $20,000/year. The maximum contribution towards his health coverage that you can require him to pay is $1900/ year, or about $158/month. The balance is your responsibility. In this case, if his policy is $400/month, your annual cost will be $2,904. When compared to a $2,000 penalty, it is easy to see why many firms may consider to opt out. Before you make a decision, have a broker calculate your direct and indirect costs, just to confirm that you’ve assessed your potential penalties properly.

2. Tax Implications Law firms that choose not to offer health care coverage to employees will almost certainly miss out on tax breaks. Your contributions to health care coverage which are currently tax deductible will remain deductible after the new laws go into effect.

3. How To Count Employees Counting full time employees is no longer as simple as counting the heads of those in your office who work 40 or more hours. It is dangerous to assume that you have less than 50 full time employees if you employ a large number of parttime workers. Last summer, the IRS issued 18 pages of rules as to what constitutes a full-time employee, and the truth is;,even that didn’t answer the question. If you are unsure as to how to tally up your employees, make sure you talk with an insurance broker who understands and can explain the process of counting part-timers.

TOP

CALIFORNIA LEGAL ETHICS RULINGS OF

2012

Continued from page 9

People v. Whitus

(2012) 209 Cal.App.4th Supp. 1 (EQ 9.3.10): The appellate division of the Superior Court upheld $750 in sanctions against an attorney who had failed

4. Reporting Requirements Are Unaffected By Offering Coverage Regardless of whether or not you offer health care coverage to employees, you will still face federal reporting requirements so as to determine what your penalty will be. There’s no getting around this requirement. If you were hoping to save yourself the time or hassle of having to deal with federal reporting by opting to pay penalties, you’re out of luck on this one. The federal government mandates that you report either way.

5. What Will Opting Out Do To Your Ability To Attract And Retain Talent? If your firm has always offered coverage, but you’re considering opting out and paying penalties instead, you’ll have to consider what this message may send to existing and potential talent. While paying penalties may save money in the short term, in the long term, will refusing to offer health coverage limit your firm’s growth? Will you be able to attract the rising stars that firms who do offer coverage are able to attract? Clearly, the decision to continue to provide health coverage, to begin providing health coverage, or opting to pay penalties is not one to be taken lightly. Because each firm is unique, your solution to the new laws will be entirely unique. Whether or not you decide to change your existing policies is something you’ll need to discuss at length with an insurance broker who can illuminate the obligations and implications of deciding to pay penalties or to provide coverage. But you need to begin the discussions now. Because of the complete overhaul of our health care system, changes and new requirements will continue to roll out as the months pass, and you’ll be in better shape to roll with the punches if you’ve already begun working towards your new plans. n

to appear at several misdemeanor trial readiness conferences. The appellate panel spent little time discussing the merits of the appeal. Most of the ruling was spent describing the sanctioned lawyer’s “parade of insults and affronts” to the appellate panel during oral argument. In lieu of monetary sanctions for counsel’s offensive conduct, the Court ordered the clerk to send the opinion to the State Bar to consider disciplinary action against the attorney, expressing no view on what, if any discipline should be imposed. The significance of the case is its disapproval of particular conduct the Court considered disrespectful in oral argument. Among other things, counsel equated the appellate division with the fox watching the hen house. Under the California State Bar Act, attorneys have a duty to maintain the respect due to courts and judicial officers. (Bus. & Prof. Code § 6068(b).) The Court left no doubt that it believed counsel’s behavior violated that directive. In referring counsel to the State Bar, the Court sent a message to this attorney and every member of the bar that incivility in oral argument is neither acceptable behavior nor effective advocacy. And that such behavior will have consequences. Attorney Journal | Volume 116, 2013

1. Look for the 2nd Generation Connection. Example: Let’s say you want to reach Raymond Ramsey, Counsel, Bechtel Corp. - Enter Raymond Ramsey Bechtel in the LinkedIn people search box. - Notice if a “generation” number is placed next to his name. - If it’s “2nd” then that means you have a common “connection.” - Click the person’s name and pull up their profile. - All of your common connections will appear on the right side of the page. - Contact your common connection and ask that person for a warm personal introduction. If you’re not a member, join LinkedIn: Go to LinkedIn.com and click on “Join Today.” The basic service is FREE.

“A lot of new business can come from the 2nd generation.” —Doug Mandell, LinkedIn’s first General Counsel

10 LinkedIn Techniques To Increase Visibility and Add New Clients by David Keller David King Keller is the award-winning author of 100 Ways to Grow a Thriving Law Practice and the ABA best seller, The Associate as Rainmaker: Building Your Business Brain. Keller is an Ethics M/CLE instructor and delivers business development training within an Ethics CLE titled Ethical Business Development Strategies. This Ethics MCLE is accepted by State Bars, law firms, Bar associations and ABA annual conference CLE seminars. David is a respected keynote speaker and trainer on strategies for increasing firm revenue, including The Neuroscience of Quickly Going From Stranger To Trusted Adviser. Contact David for a free copy of his Social Media For Lawyers article or a review copy of his two law firm business development books at david@kbdag. com or call him at (415) 289-0544, cell: (415) 444-6795.

2. Join the LinkedIn Group Your Potential Client Belongs to and send an “inmail.” Join a group to which the high-value contact already belongs. Members of the same group can send messages to each other even if they are not directly connected.

3. Make Your Title Specific. Just below your name on your LinkedIn profile there is a space for your professional “headline.” The vast majority of lawyers simply write, “Shareholder at Law Firm X,” or something similar. This is a missed opportunity to make a first impression that tells people specifically what you do. Simply click “edit” to the right of your name, and you can add a headline that tells people specifically what you do.

4. Update Your Outlook Contacts Often. When you joined LinkedIn, chances are that you imported your Outlook address book and sent invites to a bunch of your contacts. It’s time to do it again. With more than 1 million people joining LinkedIn each week, the chances are that many of your contacts who weren’t members when you joined are members now. Just log in to your LinkedIn account and click on “Contacts,” then “Add Connections,” and then follow the prompts.

5. Monitor Who Is Reading Your Profile. LinkedIn has built into its platform the ability to see who is reading your profile. This is a premium service, but by spending $20 per month, you can see the names of people who have viewed your profile. According to Adrian Dayton, who provided some of this LinkedIn information, “I’ve been using this service for more than a year, and it has led to meetings with some highvalue contacts who I thought were no longer interested in my services. The service isn’t very expensive, but if it leads to one more meeting with a potential client, then it is well worth the investment.” Now that you know about this service, you can limit what others “see” when they do this same search of who has viewed their LinkedIn profile. Go to “Settings” in the top right hand corner. Then hit “Select what others see when you’ve viewed their profile.”

6. Add Power Point Presentations To Your Linkedin Bio. Did you just spend 10 hours preparing a PowerPoint presentation for a CLE that only a few people attended? No worries — you can upload the slides to the social network Slideshare.net. Slideshare.net allows free PowerPoint links to Facebook and Twitter. If you upgrade to Pro for $19 per month, you qualify for LinkedIn customization which will allow you to add unlimited PowerPoint slide shows directly to your LinkedIn account. Once you have set up the account by following the Slideshare prompts, you can simply click on “More” and then “Get more applications” and finally choose “Slideshare” and your presentations will be added to your LinkedIn profile just below your profile summary.

7. Download LinkedIn App for Outlook. Google “LinkedIn app for Outlook” in order to locate this app to download. Or go to http://www.linkedin.com/ static?key=microsoft_outlook • Every future email you receive will show your LinkedIn generational relationship with the sender. • One click allows you to send a “LinkedIn” invite to anyone who emails you that has an account with LinkedIn, which will be indicated. This allows quick and fast expansion of your LinkedIn network. You can ask for a “link” when you are actively engaged with the person and the connection is very present. • Automatically provides a list of previous email correspondence with that person.

8. Search engine optimize (SEO) your profile. Many seeking an attorney will go to LinkedIn’s “People” search box and type in keywords just as they would with Google, only now the search is limited to just professionals listed within LinkedIn. Before you follow this first tip, go to your LinkedIn site home page navigation bar right now and next to “People,” type in the keywords that describe your practice. Notice where you show up out of all the names that now appear. Now raise your SEO listing by incorporating those same key words in your profile headline. On your LinkedIn Home page navigation bar, go to Profile, then click on Edit Profile. Click on the “Edit” immediately to the right of your name. Then scroll to the Headline box and type in a description that includes those keywords. Hit “Save Changes” and then repeat the keyword search and now see where you end up. To raise your SEO even higher, add those key words to your job description, current and past. Here’s another trick to raise your SEO: go to the “Websites” section of your Edit Profile and edit each of the 3 websites in this way, select “Other” for the website category, which opens a website description box; now type your keywords into that 2nd box, and list your firm’s website in the 3rd box on this “Website” line. Save. Now check your keyword SEO. Getting better, right?

9. Use “Share An Update” Regularly. On your LinkedIn Home page, you are provided a Comment box to “Share An Update.” That “Update” will go out to every one of your contacts. This is one way to stay “Top of Mind” with your LinkedIn Network. This is your chance to periodically “billboard” your expertise, articles, recent accomplishments, pro bono work, etc.

“70% of corporate counsel use LinkedIn as a tool” — BTI Consulting

10. Claim your vanity URL. Make your profile look more professional and easier to share by claiming your LinkedIn vanity URL. Instead of a URL with a million confusing numbers at the end, it will look nice and clean like this: http://www.linkedin.com/in/pamelavaughan. Do so by using this link: http://www.linkedin.com/profile/ public-profile-settings and clicking “customize your public profile URL” down on the right-hand side.

Attorney Journal | Volume 116, 2013

WARNING: e-Discovery Missteps Can Open Up the Door to Identity Theft By Samantha Green

orporate legal departments and law firms that host and review data online bear a significant responsibility to ensure that personally identifiable information (PII) remains protected. According to the Social Security Administration, identity theft is one of the fastest growing crimes in America, and the Federal Trade Commission (FTC) estimates approximately nine million Americans have their identities stolen each year. Most of these crimes rely heavily on a single piece of informationâ&#x20AC;&#x201D;the Social Security number (SSN). As more and more information moves online, criminals have developed a variety of methods to steal information, and the majority of these lost or stolen SSNs are a result of database security breaches. By stealing SSNs, criminals can commit financial fraud, open new lines of credit, empty bank accounts and even rack up false medical bills. This means that protecting access to SSNs in the digital era is more important than ever. When organizations collect large volumes of data during discovery, and especially when client information is collected, sensitive information is often swept up in the collection and processed. With hackersâ&#x20AC;&#x2122; ability to break into any computer system, it is imperative that document management databases be safeguarded. If there is a security breach, innocent bystanders may become victims of identity theft, and the organization hosting the data will almost certainly be held responsible and endure a public relations nightmare. The FTC, acutely aware of the risks of collecting and hosting data that contain PII, has written and published their own security guidelines to ensure that data are protected. Firms hosting data internally in a Concordance, Summation, Relativity or other proprietary database should consider

Attorney Journal | Volume 116, 2013

implementing security measures and policies that track the FTC guidelines. If a third-party provider is used, firms are welladvised to consider the providerâ&#x20AC;&#x2122;s security systems in light of those guidelines and perform an audit of their environment. Most reputable providers offer top-notch security, and for many firms, these providers may represent a more economical option than attempting to set up a firewall in-house.

Protecting access to SSNs in the digital era is more important than ever. While sensitive information is particularly vulnerable when firms are hosting data, it can also be compromised when turned over to adversaries or government entities, or when it is filed with the court. Rule 5.2 of the Federal Rules of Civil Procedure, as well as many state equivalents and industry regulations such as the Health Insurance Portability and Accountability Act (HIPAA), require privacy protection for parties or non-parties whose information may be included in court filings. Such information not only includes SSNs, but also taxpayer-identification numbers, birth dates, financial account numbers and the names of minors. As awareness of identity theft increases, courts have become increasingly intolerant of un-redacted PII and have recently granted sanctions when sensitive information has been exposed. Three recent cases illustrate the risk to counsel that fails to heed the importance of protecting PII. In Allstate v. Linea

Latin, the plaintiffs filed an Amended Complaint on the court’s Electronic Case Filing System, which contained more than 160 pages of exhibits disclosing birth dates, names of minors, and financial and other sensitive information. The court cited the advisory committee note to Federal Rule 5.2 and made clear that it is up to the parties to remember all documents are now available over the Internet. The court went on to add that attorneys can no longer ignore technology and shift blame for missed redactions to support staff; the potential consequences of filing documents with personal information are now far too serious. The court emphasized that it is the responsibility of counsel to ensure that personal identifiers are properly redacted. Accordingly, sanctions were granted against plaintiff’s counsel. In Weakly v. Redline Recovery, documents were filed with the plaintiff’s full SSN listed. Prior to filing the documents, the defendant’s attorney checked a box indicating that he had read a notice that explicitly established his responsibility for redacting sensitive information: “IMPORTANT NOTICE OF REDACTION RESPONSIBILITY: All filers must redact: Social Security…numbers…in compliance with Fed. R. Civ. P. 5.2.” Sanctions were granted against the defendant’s counsel. Finally, in Engeseth v. County of Isanti, counsel filed an affidavit with full SSNs and dates of birth for 179 individuals. The court stated it was deeply concerned about the harmful and widespread ramifications associated with negligent and

inattentive electronic filing of court documents and noted that, although electronic filing significantly improves the efficiency and accessibility of our court system, it elevates the likelihood of identity theft and damage to personal privacy when lawyers fail to redact. Again, sanctions were granted. In light of these and other cases, it is crucial that attorneys identify all instances of PII during the review phase of e-Discovery. Tired eyes can often miss data that reveals personal information. To mitigate this risk, firms should consider using a tool that automatically redacts patterned data such as SSNs and birthdates. With auto-redact technology, reviewers can designate redaction patterns of data to look for, including specific number patterns (such as SSNs or phone numbers or account numbers) or specific text strings. The tool will search for and find them automatically, obscuring them with a black box to ensure they are not produced. A good tool will also incorporate a number of quality control protocols to validate performed redactions, flag instances of data that may require manual redaction and generate reports to document a defensible process. Now that nearly all evidence is stored electronically and can be accessed online, implementing security measures that meet FTC standards for protecting private data is an essential first step to ensure PII is protected, but many firms will also want to consider using automated redaction tools, which not only significantly reduce the risk of missed redactions, but also streamline the redaction process to save both time and money. n

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