SAN DIEGO
Volume 117, 2013 • $6.95
LAF-OFF Proves It— Lawyers Are Funny!
Teresa Y. Warren
The Alternative to the Internet
David Lorenzo
Do You Want to Improve Your Legal Marketing? Here are Four Considerations
John Burnett
Ethics Quarterly
Daniel E. Eaton 10 Tech Tips To Increase Productivity and Revenue
David King Keller Attorney of the Month
Diane Letarte
Galente Ganci, APC Rising Star of the Month
Early Case Assessment
Samantha Green
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www.pma-adr.com Attorney Journal | Volume 117, 2013 3
2013 EDITION—NO.117
TABLE OF CONTENTS features ATTORNEY OF THE MONTH
6 Diane Letarte by Karen Gorden
10 The Alternative to the Internet Learn a New Education-Based Alternative to Internet Marketing. by David Lorenzo
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12 COMMUNITYnews
EXECUTIVE PUBLISHER Brian Topor
15 Early Case Assessment (ECA) – Before 26(f)
EDITOR Nancy Deyo
Using Early Case Assessment (ECA) to Prepare For the 26(f).
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 John Burnett Sally J. Schmidt David Lorenzo David King Keller Samantha Green Teresa Warren 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 Samantha Green
16
RISING STAR OF THE MONTH
16 Galente Ganci, APC by Jennifer Hadley
22 LAF-OFF Proves It… Lawyers Are Funny!
San Diego Volunteer Lawyer Program has Proved that, in Fact, Lawyers Truly are Funny…and Has Raised a Lot of Money in the Process. Teresa Y. Warren
24 Do You Want to Improve Your Legal Marketing?
Here are Four Considerations. by John Burnett
28 10 Tech Tips To Increase Productivity and Revenue
Tech Tips that Can Increase a Law Firm’s Productivity and Revenue.
15 30 Ethics Quarterly by Daniel E. Eaton
by David King Keller 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
Experience & Results Executive Presentations Proudly Congratulates GOMEZ IAGMIN WALKUP, MELODIA, KELLY, SCHOENBERGER PANISH SHEA & BOYLE
John H. Gomez, Esq.
Michael A. Kelly, Esq.
Brian J. Panish, Esq.
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Professional Trial Technicians Exhibit Display & Clip Creation iPad Prep with Case Integration Day-in-the-Life Videos Settlement Documentaries Promotional Videos Interactive Presentations Timelines, Charts & Illustrations Medical Exhibits
Renegade ATTORNEY by Karen Gorden
A
t 8:00pm on a Tuesday night, Diane Letarte is just leaving her San Diego office and still has more than 200 miles to drive. Although pulling long hours is nothing new for attorneys in any practice area, Letarte has no option but to drive to her clients. As Lifers in California State Prisons, Diane’s clients were all incarcerated after having been convicted of 1st and 2nd degree murder, kidnap/robbery or kidnap/ransom. Not surprisingly, Letarte is one of only a few dozen attorneys in the state to work in the niche practice of post-conviction.
Standing Up For Lifers
Letarte’s decision to work in the field of post-conviction may appear brazen. However, Letarte is a bit unconventional by nature. Born and raised in Montreal, Quebec, Letarte is a licensed pilot, rides a motorcycle, skydives and bungee jumps for fun, so she’s admittedly a bit of an adrenaline junkie. But it wasn’t until 1996 that Diane entered the legal field. “I worked full time as a Software Engineer, and traveled the world for System Support,” Letarte says of her first career. An awful experience with an attorney prompted her to go to law school at night. “I was ripped off by an attorney when my father died and I hated attorneys. I felt helpless. I promised myself I would get the education and never make anyone else feel the way that I felt,” she says. After 20 years with her software company, companywide lay-offs presented Diane with the opportunity to receive severance pay, and simultaneously open her solo practice, as an “on the street, criminal attorney, doing misdemeanors, felonies, and trials,” she recalls. But a chance meeting with a fellow attorney five years into her practice introduced Letarte to post-conviction work. “At first, I enjoyed the traveling and setting my own hours. Then I began to enjoy meeting the individuals that most of the free community never gets a chance to speak to, or would want
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to give the time of day. I read something a long time ago that really stuck with me. ‘You can easily judge the character of a person by how she treats those who can do nothing for them.’ This area of the law is very character building!” she laughs. Growing serious she says, “This area of the law carries the life of another human being in your hands. Post-conviction is a very niche area of the law, and since Marsy’s Law became effective, on-the-street criminal attorneys should not go in and wing the Parole Suitability Hearing. This can be devastating because if the client or attorney is not properly prepared, the inmate can receive a 15 year denial before getting another chance at a Parole Review.” “For example, if an inmate took a plea for 2nd degree murder of 15 to life, the last thing the inmate-client needs is to get denied for another 15 years. That basically turns his 2nd degree murder plea into a double sentence, which is worse than a 1st degree murder sentence.” As a result, many of Letarte’s clients come to her by way of referral from criminal attorneys who send their previous clients to her. The remainder of her clients are word of mouth referrals from inside the prisons. “Prisons are a very closed community. Inmates talk about good attorneys and bad attorneys,” she explains.
Fearless Fighter
Although today, Letarte doesn’t bat an eye at heading into a men’s prison, she did shadow colleagues as a new attorney and she highly recommends anyone considering this field to do the same. “There is no class, and there are barely any books written about this area of the law. It is on the job training. As a woman attorney, there is no book that tells you how to dress, or talk, or what to carry or not carry when going into a High Security Level IV Men’s State Prison, such as Pelican Bay State Prison, designated to house California’s most serious
Diane Letarte’s Advocacy For Lifers Is Not For The Faint Of Heart.
JOURNAL
FEATURED ATTORNEY
OF THE MONTH
2013
POST-CONVICTION ANGELS
criminal offenders. The best advice I can give a new attorney who wants to do lifer parole suitability hearings is to shadow another attorney doing lifer cases,” she says. Even for a thrill seeker like Diane, she concedes that her early work in the field was intimidating. But over time she’s become increasingly comfortable with the work, and often refuses the prison’s offerings of protection. “I treat everyone the same and actually enjoy having conversations with my clients and getting to know them personally. This is crucial in representing my clients. I sit in the prison with my client like I would be sitting in my family room.” To illustrate, Letarte recalls being offering a bullet proof vest to wear while talking with a client. She says, “I refused
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to wear it. If I could not trust my client how could he ever open up to me and share his story so that I could successfully represent him?” Likewise, Letarte has refused spit masks, and does not allow her clients to be handcuffed while she is meeting with them. “I am always aware of my environment, but I do not want to have my clients feeling that I am there for the retainer, and a quick 15 minute interview.”
Straight Shooter
Diane is equally as candid with fellow attorneys as she is with her clients. As such, she admits that it takes a certain type of person to do the work that she does. “You need to have stamina,” she says. “There are long hours, lots of traveling, and lots of time spent alone away from home and stuck in hotels. You also need to be self-sufficient, because there are so few lawyers in the field; it’s not always easy to bounce ideas off of others. You must also be alert to your surroundings.” Finally she adds, “You must know what you’re doing, and be able to manage realistic expectations.” Yet even with those occupational hazards, Letarte truly enjoys her job. “I know it sounds like an oxymoron, but I’m a caring attorney. It drives me to do the right thing. But if you’re in this for the money, you’re in the wrong field.” As far as money goes, Letarte has made her fee structure remarkably simple. On her website, Diane has flat legal fees clearly posted. “I refuse to bill by the hour whenever possible. I can be more efficient [with a flat fee] which the clients love. This is a new business model and it is a much more humane way to work, and more affordable to my clients. They know up front what services they are getting for their money.”
When Letarte entered her niche field, she recalled a group of roughly a dozen known attorneys who were exclusively post-conviction lifer attorneys. Today she estimates there are closer to 30 known attorneys in her field, as well as newer, unknown attorneys, so there still aren’t many attorneys choosing this “in the prison” practice. However, this has served to her benefit and the benefit of her clients in multiple ways. She has earned another Masters Degrees, in Forensic psychology, and an LL.M. in Criminal Law, since opening her practice. She has also racked up more than 1,000 parole hearings and parole revocation hearings, making her one of the ‘old-timers’ in the field. As a result, the Law Office of Diane T. Letarte serves all 34 State Prisons throughout California for lifer parole hearings. Her skills have also been recognized by organizations such as the Central California Appellate Program (CCAP), who have called on Diane to teach classes to their appellate attorneys on the lifer parole hearing process. As an added surprise, over the last year, Letarte has seen her firm grow faster than she had anticipated, thereby allowing her to add support staff. Yolanda Navarro “shares the same compassion for the less fortunate,” Letarte says proudly. Navarro was the Pro Per Administrator from Private Conflict Counsel (PCC), who met clients at the local San Diego County Jail. “Her previous job was the most challenging she ever had but at the end of the day, she felt that she made a difference in someone’s life and that’s all that mattered,” Letarte adds. “She has made a world of difference to me in helping handle clients while I’m traveling.” And of course, just as those who came before did for her, Letarte is passing on her expertise to an up and coming attorney interested in the field. For the past two and a half years Serena Salinas has been mentored by Letarte; previously worked with the Civil Rights Clinic at UC Davis School of Law, where she worked on Gilman et al v. Schwarzenegger (Marsy’s Law) among others. “Serena’s experiences and passion for post-conviction work reflects her great potential,” Letarte says. “I am honored to be able to offer her on the job training…beginning with lots of visits to prisons.” n
EXPERIENCE
A Swiftly Growing Practice, in a Slowly Growing Field
» EDUCATION
• 2011 M.S. Forensic Psych., Walden University, MN • 2003 LL.M. Criminal, University of San Diego Law, CA • 1996 J.D. Thomas Jefferson, School of Law, SD, CA (Cambridge University, Cambridge England) • 1991 M.B.A. University of Redlands, Redlands, CA • 1979 B.S. Computer Science, Florida Atlantic Univ., FL • 1976 A.A. Associate of Arts, Palm Bch Jr. College, FL
» ACCOMPLISHMENTS • • • • • • • •
Judge Pro-Tem volunteer at Kearny Mesa Superior Court Over 1500 Parole Revocation and Lifer Hearings Vista Public Defender for LLM Criminal Internship – trials Mediator since 2000 for NC LIFELINE’s Dispute Resolution Arbitrator since 1996 – California Housing Finance Agency San Diego Superior Court – Mediator Certified Solo Practitioner since 1997 Criminal, Personal Injury, Bankruptcy and Employment Law
» PROFESSIONAL MEMBERSHIPS • • • • •
Former President of NC Chapter of [women] Lawyers Club Member of San Diego and the North County Bar(s) Member of Florida and the Wash. D.C. Bar(s) Award winner from San Diego Volunteer Lawyer Program (SDVLP) Award Appreciation for outstanding dedication and service – North County Bar Association • Former President of Condo HOA and Single Family Home HOA. Attorney Journal | Volume 117, 2013
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The Alternative to the Internet 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.
Just about every day, someone calls me with a question about Internet advertising.
them invite all of their friends. The idea is to get as many people in the room as possible.
Lawyers looking for a marketing panacea are flocking to Search Engine Optimization and Social Media. They chase good money with bad, trying to find one way to attract one hundred new clients. This leaves them disappointed and a little lighter in the wallet. My role in the complex world of law firm marketing is to help you sift through all the hype and develop a cost effective strategy for attracting new clients. This strategy is based upon the belief that finding one way to attract one hundred clients is risky, expensive and unrealistic. Instead, we focus on developing a client acquisition strategy that is based in reality. Our goal: Find many ways to develop one deep client relationship instead of one way to attract several clients. Remaining true to that mission, today I offer you a viable alternative to the Internet. It is education-based marketing and it will definitely help you attract more clients – if you have the guts to give it a try.
Step five: Follow up like crazy.
Here is an example of an effective educationbased marketing strategy: Step one: Prepare a seminar on a topic of interest to your target audience. Example: • • •
Personal Injury Attorneys – Topic: Insurance Coverage Criminal Attorneys – Topic: Keeping kids out of trouble in the age of the bully Trust and Estate Attorneys – Topic: Asset protection for doctors and entrepreneurs
Step two: Invite everyone you know to attend this seminar. This means you should invite all of your friends and have 10
Attorney Journal | Volume 117, 2013
Step three: Deliver great content at the seminar. Step four: Capture the attendees’ contact information. If you have 50 people in the audience at each seminar, and you follow the steps listed above, you can expect to acquire 5-10 new clients per year from this strategy (provided you host 4-6 of these seminars each year). When I work with my private clients, this is one of the first strategies I recommend they implement. It is a low cost way to begin developing relationships with people who can refer you business, engage you, or both. This strategy works. Yet most lawyers will never attempt it. Why? You tell me. I just gave you a gift. A way to attract a few new clients each year. Will you follow these simple steps? Is this strategy as sexy as the internet? No. Is this strategy as easy as paying someone to get you on the first page of Google? No. Does this strategy get as much publicity as Social Media? No. But it works consistently. It just requires some thought and some effort from you. I don’t know what your plans are for your law firm. I’m not certain what your income goals are. But I know what I hear from lawyers all over the world. They all want cost effective ways to attract new clients. Here’s one. How fast can you integrate this into your marketing activity? n
Committed to Helping Victims of Elder Abuse and Personal Injury Receive the Justice and Compensation They Deserve • Nursing Home Abuse and Neglect • Financial Elder Abuse • Personal Injury Generous Referral Fees Paid Per State Bar Rules
750 B Street, Suite 3300 | San Diego, CA 92101 | 619.233.0011
www.waltonlawapc.com
Attorney Journal | Volume 117, 2013
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COMMUNITY news nFisher & Phillips LLP has added David Amaya as a new associate to its San Diego office. Amaya brings extensive knowledge to the law firm. Prior to joining Fisher & Phillips LLP as an associate, Amaya practiced labor and employment at Stokes Roberts & Wagner in San Diego and upon graduation from law school, joined the San Diego office of Lewis Brisbois Bisgaard & Smith DAVID AMAYA as an associate in the firm’s labor and employment group. Amaya graduated, cum laude, from the Indiana University Bloomington Maurer School of Law in 2008. While there, he was the Articles Editor of the Federal Communications Law Journal. He received his Bachelor of Science in Management Science from the University of California, San Diego in 2005.
all of whom were from Higgs Fletcher & Mack. Other standout areas included William Miller as the only attorney selected as a leader in Plaintiffs’ Litigation as well as Mitch Dubick, who was the sole lawyer selected as a “Top Attorney” in Tax Controversies Law. JANICE BROWN The selection of “Top Attorneys” is based on the confidential opinions of lawyers and members of the judiciary who received invitations from LexisNexis Martindale-Hubbell to provide reviews of lawyers of whom they have professional knowledge. To create this list, LexisNexis Martindale-Hubbell tapped into its database of Martindale-Hubbell Peer Review Ratings to identify lawyers who have been rated by their peers to be AV Preeminent—the highest Peer Review Rating available.
n Higgs Fletcher & Mack announces the hiring of new partner Karl A. Rand. Rand previously served as Special Counsel to McKenna Long & Aldridge, LLP and Luce Forward Hamilton & Scripps, LLP for nearly seven years. “We were thrilled to welcome Karl to the firm,” said John Morrell, managing partner at Higgs Fletcher KARL A. RAND & Mack. “He brings a wide range of legal expertise with more than 20 years of experience. He is also heavily involved in the community. We value both of those things here at Higgs.” Rand’s practice will focus on all aspects of employee benefits and executive compensation. He serves as an expert witness in Employee Retirement Income Security Act (ERISA) litigation, is published in a number of journals and has given multiple presentations/seminars related to his practice area. Rand is a past chairman of the Taxation Section of the San Diego County Bar Association and was an adjunct professor for the University of San Diego School of Law from 2008-2011. Rand received his undergraduate degree from Cornell University and his Juris Doctorate and LL.M. (Diploma in Taxation Law) from the University of San Diego.
nJohnson & Weaver, LLP, is proud to announce that three of its attorneys recently received recognition from three separate publications for their commitment to providing the highest quality legal services. San Diego Magazine named Frank J. Johnson one of the top “Top Lawyers” for civil litigation in its March 2013 edition. San Diego Magazine’s recognition follows the San Diego Daily Transcript’s naming of Mr. Johnson as a semi-finalist for Top Attorneys 2012 for corporate litigation. Brett M. Weaver was named a 2013 “Super Lawyer” by Super Lawyers Magazine. Shawn Fields was recently recognized as a 2012 Outstanding Young Attorney by the San Diego Daily Transcript. The attorneys at Johnson & Weaver have represented some of the largest and best known companies in the country in complex business disputes. The firm prides itself on providing the highest quality legal services in the areas of complex business disputes, securities litigation, and consumer class actions.
nSan Diego Magazine recently released its list of “Top Attorneys” in San Diego; included were 31 Higgs Fletcher & Mack attorneys selected within 15 practice areas. Higgs partner John Morris was the sole San Diego lawyer recognized as a top Appeals & Writs attorney and the Transportation Law practice area listed only four attorneys,
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BRETT WEAVER
SHAWN FIELDS
FRANK J. JOHNSON
COMMUNITY news nIn the first of more than 10,000 lawsuits to go to trial, a Los Angeles County jury recently awarded $8.3 million to a 65-year-old Montana man, Loren Kransky, whom the jury found was injured by the recalled DePuy ASR artificial hip. “The design of the ASR was deeply flawed, unproven and unsafe. DePuy should have never sold a single one,” JOHN GOMEZ said John Gomez, a lawyer for Mr. Kransky. The suits are projected to cost DePuy Orthopaedics, a division of the medical products giant Johnson & Johnson, billions to resolve. “This is a victory for Mr. Kransky and thousands of other badly injured ASR patients who have yet to get their day in court. Jurors across the country will return similar verdicts until J&J takes full responsibility,” said Brian Panish, another attorney for Kransky. “DePuy has yet to reach out to these honest, caring and capable medical professionals and tell them, ‘We should have listened to you. You were right. We were wrong to blame you,’” said attorney Michael Kelly, who also represented Kransky. nThe US Department of Agriculture, Forest Service has named Brown Law Group as one of only three firms in the nation to provide legal services for its employment litigation. The firm was selected to represent the USDA Forest Service in employment-related cases within the state of California that are not part of a class action. Other firms included in the award were Gary JOHN MORRIS Gilbert, LLC, Silver Springs, MD and DeCuir, Clark & Adams, LLP, Baton Rouge, LA. Brown Law Group, founded by Janice Brown in 2003, is a leading San Diego business litigation firm that specializes in all aspects of employment law and business litigation. “We’re honored that the USDA Forest Service has recognized Brown Law Group as a worthy partner in the area of employment litigation,” said Brown. “This is an outstanding opportunity for us to demonstrate our commitment to excellence.” The total scope of the USDA Forest Service contract for all three firms is $16.5M over a five year period under an Indefinite-Delivery, Indefinite-Quantity contract (IDIQ) with the exact amount allocated to each firm dependent on the number of cases assigned with their region. nKilpatrick Townsend & Stockton announces the addition of Erwin Cena to the firm’s San Diego office. Mr. Cena joins the firm as an associate on the Patent Litigation Team in the internationally-recognized Intellectual Property Department. Mr. Cena focuses his practice on patent litigation, and he has
experience in the areas of commercial litigation, products liability and construction defect matters. Prior to joining the firm, Mr. Cena worked as an associate at a San Diego law office where he represented plaintiffs and defendants at the federal and state court levels. He also served as a law clerk for the United States Attorney’s Offices in Sacramento, ERWIN CENA California, and in San Jose, California. Before launching his legal career, Mr. Cena was employed by Hewlett-Packard where he was involved in the research and development of manufacturing processes for large-format inkjet printer cartridges. He also served in the United States Navy. Mr. Cena earned his J.D. from the University of California, Davis School of Law. nKen Turek, a founding member of Endeman Lincoln Turek & Heater law firm, was the winner of the March 21 LAFOff (Lawyers Are Funny comedy competition and fundraiser), produced by San Diego Volunteer Lawyer Program, Inc. (SDVLP), a nonprofit organization that provides free civil legal services to thousands of disadvantaged clients every year. Turek’s comedy routine, which focused on law firm advertising and suggestions for making jury trials more exciting, garnered a perfect 10 score from each of the three judges, beating out seven other lawyer comedians in the seventh annual fundraising event. Turek also won the comedy competition in 2009. More than four hundred attendees turned out for LAF-Off, which took place at the House of Blues in downtown San Diego. The event raised over $65,000 for SDVLP. 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 117, 2013
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Attorney Journal | Volume 117, 2013
Early Case Assessment (ECA) – Before 26(f) By Samantha Green Samantha Green serves as e-Discovery Counsel for DTI. She is an attorney with over 10 years’ experience. Samantha has substantial expertise in all aspects of electronic discovery, including drafting best practices for both law firms and corporate clients, as well as formulating workflow solutions for large discovery projects. Samantha has advised, written and spoken on all phases of the electronically stored information (ESI) life cycle with a broad range of experience in initial case assessment and engagement management.
Using early case assessment (ECA) to prepare for the 26(f ) “meet and confer” helps practitioners address the issues and challenges of preserving discoverable data and aids development of a “discovery plan” which establishes the foundation for effective discovery. The more you know early on about the location and volume of your electronically stored information (ESI) and the client’s preferences regarding document review, the better prepared you will be to conduct a successful 26(f ) conference and face the challenges that surround the collection of ESI.
“Meet and Confer” Pitfalls The meet and confer continues to be a challenge for many attorneys. An unsuccessful meet and confer can damage an attorney’s credibility in the eyes of his client, frustrate the judge and opposing counsel, and result in burdensome costs. When the two sides fail to hammer out details during the meet and confer, they will often find themselves spending more time arguing about discovery than the merits of the case itself. Failure to communicate about the data pool could result in relevant ESI not coming to light. There is also the risk that non-responsive information may be over-produced. When this happens, it can be difficult to determine whether the monetary and legal magnitude of the case is proportional to the expenses associated with e-discovery. ECA can help you find the right balance that will result in cost savings without increased risk or decreased defensibility.
What ECA Tells You about the Data, and How It Can Reduce Costs There are three key areas in which ECA tools can give you a big step up in approaching a 26(f ) conference: • Knowing the scope of the data set will allow you to more accurately estimate the processing, hosting and review costs. • Knowing what types of data need to be reviewed will help determine how long the review will take so
•
that reasonable time lines can be established. This information is critical in negotiating production dates, and it may also help determine if reviewers with special skills are required. Sampling key search terms in advance allows for better negotiation of final terms and may provide support for the use of clustering or other technologyassisted review workflow.
ECA tools also have the potential to help make meet and confer preparation and execution a more automated, stepby-step process. Tools like Fios Clarify, for example, allow reports to be run on a broad variety of metrics, such as the number of Excel files, emails or unprintable files you have in your entire data population. Clarify also allows all searches and results to be saved so that the sampling process is welldocumented – making it both repeatable and defensible. Instead of processing all the data associated with a case, which can be costly, you can use ECA tools to cull the data by custodian, date, file type and/or key terms. A good tool will allow you to run searches and either bulk tag or tag individual documents that should be further processed and loaded on the chosen review tool. If you cull the data preprocessing, you eliminate the need to process, host or review the entire population and thereby save your client significant time and expense.
Seize the Strategic Advantage Finally, keep in mind that effective use of quality ECA tools doesn’t just save money. It can also give you an important strategic advantage in pursuing the case. Knowing your clients’ data set very early in the discovery process allows you to be much better prepared not only for negotiating custodians and search terms, but also for persuasively arguing the legal merits of the case. Simply put, these tools are easy to use and economical, put you in a much stronger position when conferring with your adversary, and ultimately save you and your client many potential headaches. n Attorney Journal | Volume 117 2013
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A FIRM ON THE
RISE By Jennifer Hadley
F
or Eric Ganci and Renee Galente, partners in Galente Ganci, APC the road to a career in law began as a winding path, but has been a steady and straight climb upwards since opening their firm in October of 2011. But that’s not to say that the two haven’t had to work incredibly hard to get there. Nor is it meant to imply that the duo did everything on their own, as Renee is quick to point out that as young attorneys, “we have amazing connections, and they are remarkably generous with their referrals.” Moreover, the support that the friendly pair receives from their alma mater, Thomas Jefferson School of Law, has been unmatched. In fact, the encouragement from the entire San Diego community that the pair has received has prompted Renee to frequently ask her partner, (and soon-to-be husband) Eric Ganci, “How did we get this kind of support?”
“I stopped buying into what people told me about limitations.”
Humble Beginnings and Hard Work
Neither Renee nor Eric had childhood dreams of becoming attorneys. In fact, Eric had been working as a band director at an elementary school in Illinois, when he simply decided “I wanted to learn more,” he says. He was soon accepted into a “chance program” through a law school in Chicago. “If I made the grades, the school would accept me in the fall. If not, they would never accept me. In fact, they told me I could never apply to their school again,” he recalls. He decided to leave his
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job and barrel into the summer program. In early August, he found out that he did not make it. Without a job to return to, “I got busy,” he says. “I spent the next year again as a teacher and reapplying to law schools, and when I came to Thomas Jefferson, I told them ‘I just need to be taught,’” he says. He was accepted and started law school the following year. Renee never had grand dreams of becoming an attorney either. Her dyslexia made her the butt of both teachers and classmates’ jokes, and as a result, “I always figured I’d never amount to much, so I never tried.” After high school, as her friends went on to college, Galente, a native San Diegan, was working at Camp Pendleton when “my boss basically shamed me into going to college,” she jokes. But that little bit of encouragement was all that she needed to earn her bachelor’s degree. Upon graduation, she considered her next move. “It was a flip of the coin-one side would have me going to get an MBA, the other was law school,” she recalls. Since her grandfather had just passed away, “I needed to be able to start a career where I could support my grandmother. I figured with a law degree I could open my own law firm, but with an MBA, I would still need someone to hire me,” she explains. Law school proved to be a wise decision on several fronts. “I did really well in law school, I loved it, and I stopped buying into what people told me about limitations.” Coincidentally, she also met Eric in a criminal law class and soon after, they spent time traveling together when they both studied abroad in China in 2007. Following her graduation in May 2008, Renee became an associate with Thorsnes Bartolotta McGuire, while Eric decided to go solo straight out of law school later that year. “I
5 Years Into Practice, Renee Galente & Eric Ganci’s stars are rising in Civil Litigation and DUI Defense.
RISING STAR
OF THE MONTH
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“When I talked about the possibility of going into DUI defense, a number of attorneys told me that DUIs were easy because you couldn’t do much with them,” Eric says. “What I found, was that you can actually do a lot.”
was volunteering, networking, doing contract work. I would file, make appearances, whatever people wanted me to do. But nothing led to a job offer,” Eric says of his first six months out of law school. When faced with the stark reality that it was likely he was going to go completely broke, he decided to launch his own firm. “I was terrified of being a newly minted lawyer, with no capital while starting my own business,” he says. He knew that he needed a practice area that would require very little overhead. “When I talked about the possibility of going into DUI defense, a number of attorneys told me that DUIs were easy because you couldn’t do much with them,” Eric says. “What I found, was that you can actually do a lot. The logistics behind the DUI defense case appealed to me.” He wasted no time in becoming an expert in the niche
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field. “I spent every dollar I made during my first two years of business on CLEs, certifications, qualifications and education,” he says. That included his training in DUI blood testing (AKA, headspace gas chromatography) by the American Chemical Society, making Galente Ganci APC the only firm in San Diego and Eric one of only about 100 attorneys nationwide to have received this training.
Out on a Limb
Renee meanwhile was cutting her teeth at Thorsnes Bartolotta McGuire. In contrast to Eric, who relished his niche practice, Renee loved the diversity of her caseload. “I love being able to become an expert in different areas for the purpose of a current case.” With both Eric and Renee fairly settled into their respective fields, things seemed to be going well for both of them, except for one thing. “We never saw each other,” Renee said. So when Eric started hinting that the two should join forces in a practice, Renee was willing to listen, although admittedly apprehensive about leaving her prominent firm. “I’d been there four years. I was leaving the known for the unknown. Was I really going to risk starting a business during a horrible economy and take no cases with me?” However, “Eric and I figured if we were going to work incredibly long weeks and weekends, we’d much rather do it with each other and for each other. Everything we’d done together so far was successful and we hoped it would translate into running a business together,” she continues. On Halloween of 2011, the two opened the doors of Galente Ganci APC, as a DUI Defense and Civil Litigation firm. The decision to venture out together has proven successful thus far, though the two continue to enjoy very distinctive areas of practice. “Eric does DUI. People always try to send him other criminal defense cases. But Eric held strong and stuck to his guns, and does only DUI defense,” Renee says. On the other hand, as a plaintiffs-only attorney, “my clients are all really different because of my broad practice,” she explains. However, the one thing all of her clients have in common is that “the person in my office has been hurt somehow, either physically, professionally, financially or mentally. I focus primarily on personal injury, business disputes and real property litigation.” From pickling pipes to the repercussions of missing filing deadlines for patent in Europe to the highest and best use of a certain piece of property, Renee loves learning completely new information, through the diversity of her work.
ERIC LETTING OUT HIS OTHER SIDE, AS A PROFESSIONAL DRUMMER.
Staunch Support Provides Strength
However distinct their various practices are the decision to collaborate has proven to be a sound strategy, though both are quick to point out that none of it would be possible if it weren’t for the overwhelming support they have received from the legal community and their law school. “Most of our cases have been word of mouth referrals,” Renee says. Attorneys at Casey Gerry, Thorsnes Bartolotta McGuire, Klinedinst, Gomez & Iagmin, and Higgs Fletcher & Mack are amongst the many large firms in San Diego who have sent business to both Eric and Renee. “As a newer firm, we are able to take cases that don’t make good economic sense for some of the larger firms. The fact that they think of us is a huge honor,” she continues. In return, Galente Ganci APC pays out generous referral fees. “All it takes from the attorney is saying ‘Hey, call Eric or Renee’ and we’re happy to send them a referral check at the end,” Renee says. Moreover, the two feel absolutely indebted to Thomas Jefferson School of Law. “We love that school. Neither one of us would be lawyers without their support. They are the only reason we are practicing law,” Renee says. Eric adds “We graduated at a really difficult economic time. The professors are always available, and the relationship with the school doesn’t stop after graduation.”
Rising To The Occasion Of Giving Back
Given the gratitude Renee and Eric feel towards their peers in the legal community and the education they received, it is not
surprising that the two are incredibly active in giving back to the community. Renee serves as the President of the Thomas Jefferson School of Law Alumni Association, while Eric serves as Vice President. Both are active in the Lawyers Club of San Diego, San Diego County Bar Association, and San Diego La Raza Lawyers Association. The firm also participates in Rady’s Children Hospital Celebration of Champions annual event, helps to put on an annual Halloween party for the teens at St. Vincent De Paul, and regularly host charity drives for various organizations throughout San Diego each year. However, for Eric and Renee, the best way to give back to the community that has so supported them is to provide top notch service to their clients. For Eric, that has meant finding the field where he could separate himself from the pack, and branding himself an expert through a vast number of trainings and certifications. He is qualified to train police on DUI field sobriety tests and investigation, and has been named one of San Diego Metro Magazine’s Best Lawyers in San Diego, DUI/ DWI for 2012. He has also received the San Diego County Bar Association Outstanding Service by a New Lawyer, 2011. His research and writing have appeared in the 2011 and 2013 supplement of California Drunk Driving Defense and the first chapter in Strategies for Defending DUI Cases in California, both Thomson West publications Renee too has carved a strong reputation for her excellent work in civil litigation. “We are young lawyers but we are very serious about being trial attorneys,” she says. To that end, Renee has furthered her own education by attending the prestigious Attorney Journal | Volume 117, 2013
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The Next Steps
As a newer firm, Galente Ganci, APC is making the most of technology as a way to market to new clients and referring attorneys. “Social media is a great way to connect and promote yourself for newer attorneys who might not have the same budget as big law firms. We have been able to make our voices heard through Facebook, Twitter, and our website which we built ourselves,” Renee says. Indeed, in the 18 months since Eric and Renee teamed up, Galente Ganci APC has realized steady growth, but its partners are quick to be mindful of their workload. “We are careful about how many cases we take on,” says Eric. Yet, the firm expects to take on more work in coming months as their practice grows. “We have one associate now, and we see ourselves hiring our two law clerks after they graduate. We plan on growing as a business but keeping our small firm feel,” Eric says. n Contact: Galente Ganci APC 110 West C Street, Suite 712 San Diego, California 82101 619-241-2173 (Civil Litigation) 619-241-2111 (DUI) www.GandGTrialLawyers.com Renee@GandGTrialLawyers.com Eric@GandGTrialLawyers.com
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EXPERIENCE
Gerry Spence Trial Lawyers College. She has also been recognized by San Diego Metro Magazine in 2012 as a Top 40 Under 40, the San Diego County Bar Association for Outstanding Service by a New Lawyer, 2013 and was named a Top Young Influential by the San Diego Daily Transcript this year. The firm also takes specific measures to ensure clients are given personal, professional attention. For Eric and Renee, that means that all business calls and emails are returned the same day. Moreover, says Renee, “We act like regular people. We’re not going to give them the heavy, dark wood, and the formal speech that people might expect from a lawyer. We know that our clients come to us when they’re in a really bad place and we try to give them a refuge when they’re working with us.” However, their friendly demeanors should not be mistaken for either of them being a push-over. “We are nice, and light-hearted, but we push back. We are going to fight. We don’t churn and burn cases. We are always ready to go to trial,” Renee explains.
RENEE GALENTE » EDUCATION
• Park University, B.S. Business Management & Marketing, magna cum laude, 2004 • Thomas Jefferson School of Law, magna cum laude, 2008
» PROFESSIONAL MEMBERSHIPS
• American Association for Justice • California DUI Lawyers Association • Consumer Attorneys of San Diego • Enright Inn of Court • Lawyers Club of San Diego - Board Member (2012-2015) - Treasurer (2012-2014) • North County Bar Association • San Diego County Bar Association - New Lawyer Division, Civil Litigation Section Representative (2012) - New Lawyer Division, Mentorship Chair (2011) • San Diego Criminal Defense Bar Association/Defense Lawyers Club • San Diego La Raza Lawyers Association - Vice President (2013) • San Diego La Raza Lawyers Association Scholarship Fund - Board Member (2012-2013) • Thomas Jefferson School of Law, Alumni Association - President (2012-2013) - Board member (2011-2013) • Human Rights Campaign, Federal Club Member
ERIC GANCI » EDUCATION
• Northern Illinois University, B.A. in Music Education, 2002 • Thomas Jefferson School of Law, 2008
» PROFESSIONAL MEMBERSHIPS • • • • • • •
Consumer Attorneys of San Diego California DUI Lawyers Association Lawyers Club of San Diego - Photography Co-Chair (2011-2013) - Champagne & Chocolates Affair Co-Chair (2012) National College for DUI Defense San Diego County Bar Association - New Lawyers Division Board of Directors, Community Service Chair (2012) - New Lawyers Division Board of Directors, Newsletter Chair (2011) San Diego La Raza Lawyers Association Thomas Jefferson School of Law, Alumni Association - Vice President (2011-2013)
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 117, 2013
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LAF-OFF Proves it…
Lawyers Are Funny!
By Teresa Y. Warren
Are lawyers funny? While funny isn’t necessarily a word often used to describe those in the legal profession, San Diego Volunteer Lawyer Program has proved that, in fact, lawyers truly are funny…and has raised a lot of money in the process. LAF-Off (Lawyers Are Funny) is SDVLP’s spring signature fundraising event that features the comedic talents of local lawyers. This year’s affair, held in March, featured LAF-Off ”all stars,” crowd pleasers from past LAF-Off competitions. “SDVLP has a unique mission, and we want to host a fundraiser that is also different and fun,” says Amy Fitzpatrick, SDVLP’s executive director. And LAF-Off definitely hits the mark. Each year the event draws over 400 attendees and raises significant funds for the organization. The LAF-Off premise is simple: invite local attorneys, law professors and law students to give a five-minute comedy routine and have ‘judges’ grade them on a scale of one to ten. The attorney with the highest score wins. Unlike in the courtroom, LAF-Off judges are former contestants or attorneys known for their sense of humor and sometimes the judges are just as funny as those competing. Over the seven years that LAF-Off has been held, more than 40 attorneys have performed. “This is SDVLP’s 30th anniversary, and we wanted to do 22
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something special, so we invited back some of the funniest attorneys from years past, billing it as our All Star LAF-Off event,” says Fitzpatrick. SDVLP was founded in 1983 to provide pro bono civil legal services for those residents in San Diego County who would otherwise not have access to representation. Each year the nonprofit organization assists over 5,000 individuals, mainly women and children. SDVLP’s services range from guardianship and family law issues to HIV/AIDS related services and assistance to foster children. The 2013 LAF-Off competition started off with Mistress of Ceremonies Patti Zlaket—a former LAF-Off winner— lamenting about her love life and other topics, while prepping the crowd for the evening of fun. Zlaket, an attorney with Casey Gerry Schenk Francavilla Blatt & Penfield, also introduced the competition’s esteemed judges—Judy Copeland of Copeland and Tierman; Dan Link with the San Diego District Attorney’s Office; and John Little, Callahan of Little & Sullivan. Copeland and Link served as LAF-Off judges in the past, while Little has been both a performer and a judge in prior years. First up was contender, and former winner, Junichi Semitsu, a University of San Diego School of Law professor whose routine harangued a gamut of topics from diapers to the Sound
Above left:w Mistress of Ceremonies Patti Zlaket dons a tiara as part of her red carpet look, one of three outfits she wore during the LAF-Off comedy competition. Above right: Ken Turek, the 2013 LAF-Off winner, performs a hilarious routine that earned him a perfect 10 from the three judges. Opposite: Some of the LAF-off performers mug for a post-event photo. The All Star comedians are (L-R) John Gomez, Dan Stanford, Junichi Semitsu, Mike Battin, KJ Greene, the winner Ken Turek and Scott Carr.
of Music—and yes, it made sense and was quite humorous. Next to take the stage was funny man Dan Lawton of the Lawton Law Firm, dressed in an American flag pants and shirt ensemble. With the help of LAF-Off Co-Chair Scott Carr dressed as a Canadian Mountie, Lawton presented a musical comedy spoof debating which is better—the United States or Canada. Carr’s wife, attorney Heather Rosing, also served as co-chair of the event. John Gomez of Gomez Iagman was next on stage doing comedic gangster rap about his profession, fellow lawyers and a wide range of other topics, to the delight of the audience. Mike Battin of Navigato & Battin told the crowd during his routine that he “practices more golf than law” and that he is getting into shape, reflecting that “oval is a shape.” The sole woman competitor Ruth Hargrove, a professor at California Western School of Law, took on marriage: “I have a mixed marriage—with a man.” She also advised on her husband’s view of her that “no situation is so bad that you can’t make it worse.” Dan Stanford, of Stanford & Associates, came on stage sporting a plastic dog cone around his neck and sharing the details of his (supposed) recent vasectomy. Professor KJ Greene of Thomas Jefferson School of Law drew laughs by telling the crowd the only prep he did for LAF-Off was Preparation H and adding that he’d rather be on a Carnival Cruise than at the competition. The best came last when the final competitor, Ken Turek, of
Endeman Lincoln Turek and Heater, took the stage and brought the crowd to its feet with his spoof on lawyer advertising and creative ways to make jury instructions more interesting. Turek received the first ever perfect 10 score from all three judges and walked away with the LAF-Off winner’s title. This is the second time Turek won the competition, with his first victory occurring in 2009. Turek has been doing amateur stand-up comedy for years and once again proved to be a LAF-Off fan favorite. “The response that LAF-Off receives from the legal community and beyond is always enthusiastic and wonderful,” says Fitzpatrick. “The awareness it brings to SDVLP and the funds raised are the most important by-products of the event. Plus it is a great opportunity for the legal community and our other friends to come together, let their hair down and have a lot of fun on a work night.” This year’s event raised over $65,000. LAF-Off will be going on hiatus, however. Fitzpatrick says, “This year’s event will be hard to top, so we would rather take a year off, spend the time to put together another fantastic show, and create even more interest when LAF-Off returns.” In the meantime, SDVLP will continue to provide its much needed services to the San Diego community. In addition to its staff of 25, SDVLP has the support of hundreds of local attorneys and law students who provide pro bono services through the organization each year. Attorneys interested in volunteering can get more information at www.sdvlp.org. n
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DO YOU WANT TO
IMPROVE YOUR LEGAL MARKETING? Here Are Four Considerations By John Burnett
The last thing a lawyer wants is for clients and potential clients to view him or her as a commodity, providing little value at an exorbitant price. More recently, there has been the acknowledgement by many attorneys that marketing has the capacity to change that negative image and to create credibility, trust, and top-of-the-mind-awareness. This general acceptance has evolved for a number of reasons, including increased competition, a more discerning client, and the Internet, with its capacity to provide comparative information and serve as an outlet for purchase. The manner in which marketing has been incorporated into the legal sector seems to be a function of size, available resources, and attitudes of partners. In general, the larger the size of the law firm, the larger the budget, and the more that marketing has been supported by senior partners, the greater the chance that a full-service marketing department will be put in place, often including an outside advertising agency. Midsized firms usually have 1-2 individuals responsible for marketing, typically assigned to creating and implementing marketing tactics, such as collaterals, web maintenance, and events. Smaller firms, including solo practices, have turned to marketing consulting firms who specialize in a variety of marketing tactics, especially website design and maintenance, including social media. Those that have neither adequate resources nor a belief in marketing tend to rely on the 2 BIG 24
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R’s of legal marketing, Referrals and Rainmaking. [I should note that this flexibility is not always possible in that some ABA State chapters may restrict certain marketing tactics, especially advertising.] I’m not suggesting that there is anything wrong with this rational approach to employing marketing as part of your firm’s planning. I am suggesting, however, that whatever resources you spend on marketing can be further leveraged if you think about marketing differently. Begin with the assumption that understanding the principles of marketing are likely beyond your comprehension, given your current situation. None of us can understand all the complexities of strategic marketing, but you should know enough to gauge whether you are getting your money’s worth. I’m sure that you know how to read basic financial statements or assess whether the best employee has been hired. Why shouldn’t you have a fundamental understanding of strategic marketing? I have recently learned a bit about family law. You can do as much about marketing. I offer the following simple definition: Marketing is finding, satisfying, and retaining profitable customers. This process is laid out through a comprehensive marketing plan. Marketing objectives are reached through specific marketing strategies and marketing tactics. However, strategies and tactics differ across industries, situations, and available resources. Simply, the principles of effective marketing are universal, but the details are the hard part. The following considerations will help you discern the optimum role of strategic marketing in your firm.
For Your Consideration Based on my 40 years working in the legal sector, along with the answers to the primary research I conducted in 2010, I have come away with four considerations that I believe will optimize your marketing efforts.
1
Dispel the Myths
Most lawyers I have met don’t seem to like marketing. I have speculated as to the reasons, uncertain as to whether my assumptions were valid. I believe, however, that the insightful blog, “Why Attorneys Hate Marketing and What You Can Do About It,” authored by John O. Cunningham, lists ten reasonable explanations as to why lawyers shun marketing: (1) Marketing violates our traditions and/or professional ethics, (2) Clients hate being sold to, (3) My time is better spent on “real work,” (4) Marketing is a distinct profession so I could do more harm than good with it, (5) I went to law school to practice law and do not run a business, (6) Lawyers have nothing ‘hard’ to sell so marketing does not apply to us, (7) This is simply outside of my comfort zone, (8) I do not have any spare time – I’m already busy, (9) I survive on referrals– marketing is a waste of money, and (10) I know how to market – I don’t need you. Rather than offering solutions for changing these assumptions, as did Mr. Cunningham, I will simply label each reason as either true or untrue, in my opinion. Let me begin with the three that I believe are true or partially true. It is partially true that lawyers have no business doing serious marketing. Like the law, marketing is complex and is difficult to do well without the necessary training. I also believe that it is true that lawyers likely went to law school so that they didn’t have to manage a business [but they better learn], along with other career paths. Finally, while it is true that getting referrals is still the key for most law firms, I am convinced that strategic marketing can greatly facilitate this process. The remaining seven beliefs I judge as excuses for not doing marketing. They are simply not true. This notion that marketing is unethical has long been a criticism of marketing. It is based on the assumption that all marketing is manipulative and intends to trick customers. In fact, the origin for this belief was that attorneys should not engage in mass media advertising. Lawyers have always done some form of marketing, even if they didn’t call it marketing. Law firms have always created and maintained products in the form of their attorneys, and their related skills. Billable hours and the associated rates were how these products were priced. Offices were rented or built to distribute these products. Messages were created to communicate about these products through a variety of venues. Lawyers are marketers after all. They’re just not very good marketers. You need to give marketing a break, and recognize that these
false assumptions are holding you back from your optimum level of success. I believe that few lawyers have the time or capacity to do serious marketing. You should, however, be able to read and comprehend a basic marketing plan. [My survey research of attorneys revealed that 22% felt they could do this.] In the end, lawyers should let someone knowledgeable and trustworthy to do the marketing they choose not to do. In fact, I suggest that you try to find a marketing mentor. When I was a professor at the University of Denver I started a Marketing Roundtable. Perhaps an equivalent organization is near you.
2
It’s All About Relationships
Go to any workshop or read any article on legal marketing and you will be told that effective marketing is all about “building relationships” with clients. This will be followed by some supportive statistic such as, “It’s eight times more expensive to acquire a new client than to keep an existing client.” [I always wanted to see the data that supports such statements.] Instead of thinking about customer relationships in terms of time, I would like to suggest that the attitude you have toward your clients and they have toward you is a better mindset worth adopting. When I started teaching marketing in 1968, the popular term was “ being consumer oriented.” In other words, always think about your client and potential client first in respect to an optimal match. This does not necessarily posit, “The customer is always right.” Instead, ask the following questions. Can you best satisfy the needs and wants of this client? Can you offer real value? Would you being willing to refer a potential client to another attorney? Do you really care about your clients? Do they care about you? It doesn’t matter whether you are in a one-night stand or a fifty-year marriage, in a good relationship, you will both be satisfied during the time you are together. You both have known expectations that you try to satisfy. All positive relationships are based on relevant communications. The frequency and content of this Attorney Journal | Volume 117, 2013
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communication tends to change over time and across situations. An attorney must realize that effective communications is a critical part of their various relationships as well. Sound legal marketing will guide all your communications, making it relevant and consistent. At the beginning, you inform and persuade. In the middle you support, re-inform, and renew. Relationships end. Therefore, there also needs to be a win-win exit strategy, supported by meaningful information. Do you want an ex-client spreading negative stories? Still, there are bad clients. A relationship may last hours or years. Either way marketing will help you maximize relationships. As an aside, I’m a fan of newsletters and blogs.
3
Do the Plan
Imagine you were just hired to represent a 37 year-old man accused of armed robbery. The very first thing you did was to create your witness list. Doesn’t make much sense does it? In law school you were taught about strategic planning. Each case you work on, no matter how small or complex is backed with a thorough plan. Yet, in the context of legal marketing, planning is absent. Historically, it has been all about tactics, such as events, websites, social media, golf tournaments, and rainmaking, to name but a few. This is not surprising given the historic position of marketing in the legal sector. However, this is no longer appropriate given the challenges mentioned earlier. You need to understand marketing planning. At least at its roots. The following figure illustrates a typical marketing plan. Notice its simplicity. The steps are linear and the process is rational. You research the situation. You decide who your customers are. You decide what you want to accomplish. You decide how you will accomplish these objectives. Finally, you determine to what extent you have achieved your objectives. The benefits of having a written plan are well established. Most notably, it establishes coherent objectives, along with a process for achieving these objectives via strategies and tactics. The research I conducted in 2010 indicated that only 11% of lawyers indicated they had a formal marketing plan. Therefore, if you do not have a formal marketing plan you are not alone. Given that possibility, what are your options? First, do the best you can to create a simple marketing plan. Second, use this plan as a reference point for all your marketing strategies and tactics.
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4
Making Marketing Adjustments
“Marketing is not marketing is not marketing.” For four decades, marketing academics have divided marketing into two sectors, i.e., goods marketing and services marketing. Goods marketing refers to traditionally manufactured products that have tangible components. Look around your office and you will note many goods products, including your office furniture, your computer, your art objects, and books and magazines. You may use all five of your senses to perceive these objects. Therefore, perception is possible, as are comparisons. Traditional marketing strategies are in reference to goods products. Think Coca-Cola, Ford, Apple, Sony, and Swingline Staplers. Service products, on the other hand, are intangible. They are ideas, people, processes, and activities. If we put all products on a tangibility continuum, there are pure goods products, such as grain, water, and lumber, and pure service products at the other end, such as information providers, religion, consulting, politics, and the law. Service products now represent over 70% of GDP. Remember the old cliché, “Information is power.” Most products are somewhere in the middle, having both tangible and intangible components. For example, all goods products sold through a retail outlet also have support service elements, mostly in the form of sales clerks, parking, restrooms, and product displays, to name but a few. If you are to market a service product that is intangible, such as the law, you must locate tangible surrogates, such as your attorneys, your staff, convenient and safe locations, a coherent website, and so forth. Be forewarned, these tangibles must be relevant to clients, not the partners. In addition, because people deliver your law products it is important that your staff is well trained, knowledgeable, personable, and understand your business. The challenge is to standardize an intangible product. [If you would to learn more about Service Products consider my blog, “If Your Product is Intangible—Pay Attention.”] It is vital that whatever marketing is conducted in your firm, you make the necessary adjustments that go hand-in-hand with service products. It begins with the creation of excellent products in the form of lawyers and support staff. It continues with a set of strategies and tactics that are perceptible to clients in a meaningful manner. Finally, all of these decisions should be supported by marketing research. The ideas I have presented in this article reflect the notorious “tip of the iceberg.” My intent is to change your perspective
about marketing. Marketing can be valuable for your firm if you will only give it a place at the table. It requires that you reconsider the biases you hold against marketing. It is best utilized through a strategic plan. If you hire someone to do some or all of your marketing, make sure they consider the plan as a critical starting point, rather than tactics. Strive for positive relationships and be relentless in your follow-up. Be sure that you understand that marketing a service product, such as yours, requires real adjustments both in strategies and tactics. I admit that these changes will be difficult. But, can you really afford to reject strategic marketing or waste resources on the marketing you are doing? n Dr. John Burnett is the president of John Burnett Marketing, expert witness, consultant, and author. He can be reached at, jburnettdba@me.com. If you are interested in learning more about legal marketing planning, you might check Dr. Burnett’s e-book, “How to Avoid Random Acts of Marketing: A Plan for Small to Midsized Law Firms.�
The Marketing Plan Situation Analysis S.W.O.T
Marketing Research
Target Market(s)
Related Metrics
Objectives Service Adjustment
Strategies Marketing is most effective when using a stratetgic plan that is linear and rational with coherent objectives.
Tactics Evaluation
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“Attendees were greeted with a long list of experts and exhibitors sharing tech tips that can increase a law firm’s productivity and revenue,” said Adam Stock of Allen Matkins, CoChair of San Francisco’s October 11, 2012 Legal Marketing Association’s Technology Conference West. Indeed, there were tech tips galore. Here are ten of them. Sheenika Shah, Business Development Coordinator for Knobbe Martens Olson & Bear LLP, suggests SlideShare, an online tool for sharing presentations, documents, PDF’s, and that you can link to your website, send individually via email, and share on your social media channels. SlideShare is a free service, with a fee-based Pro option that allows you to track analytics. “This method of sharing information,” said Shah, “is in line with the trend toward media-rich content, which is great for SEO efforts. And, by the way, all of the Conference presentations are available at http://lmatechconference.com/ presentations/.” http://www.slideshare.net/.
1 10 Tech Tips To Increase Productivity and Revenue by David King 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) 2890544, cell: (415) 444-6795. 28
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Jeff Yerkey, Web + Interactive Director for Right Hat, stated, “the single biggest workflow saver I use is the “lash-up” between Google Reader and an iPhone / iPad app called REEDER.” He explains, “I configure all of my news RSS feeds into folders through Google Reader. Then, in REEDER, an i-app I use on my iPhone and iPad, I scan/read all my news feeds in record time. When I find a really long article—I send the article to INSTAPAPER to read it later on my computer, iPad, iPhone or Android phone.” http://reederapp.com/; www. instapaper.com/.
2
Jacqueline Madarang, Marketing Technology Manager at Best, Best, Krieger LLP and Jay Walsh of Ligature legal printing love Doodle. “Doodle is free and radically simplifies the process of scheduling meetings / events,” assured Madarang. “Whether they’re partner, client or practice group meetings, or dinners with friends, you can easily poll a number of people on different meeting time options. Doodle is simple, quick, and requires no registration.” “Simply set up a poll and send a link to all those whose input is required,” said Walsh. www.doodle.com/.
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Try e-learning to improve business development skills. Mike O’Horo of RainmakerVT calls his program, “a game-like simulation and virtual coach that teaches you practice growth strategies from your computer.” David Ackert of Practice Boomers offers a compatible program that uses a combination of video, podcast, and group conference calls to ensure implementation. Both programs provide 24/7 access to business development training and deliver performance metrics to law firm marketing and PD professionals. They cost a fraction of traditional live coaching and training programs. Here are samples from these two approaches: http://tinyurl.com/9tf847d, and http://tinyurl. com/9u528al. Deborah McMurray, CEO and Strategy Architect for Content Pilot LLC, recommends “using your IT resources to create website bios that offer an interactive experience for your visitors. Rather than the standard bio on one long page, when a visitor clicks your name a mini-website appears with tabs to view various aspects of your skill sets, experience and personal interests allowing you to showcase what’s best and most unique about you in a clean elegant fashion.” Example: http://tinyurl.com/9vnxzoc.
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“Egnyte is a hybrid cloud service with online and local access,” said presenter attorney Jeff Curl, founding partner of San Francisco’s JC Law Group PC. “We control user access and permissions for each client and staff member. As bankruptcy attorneys, we need a lot of documents to prepare a case for filing. Egnyte gives us the security helps us streamline case management and reduces the burdens on clients who can upload files directly to designated folders in Egnyte.”
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“Lawyers are being called for new matters and speaking engagements because clients came across their legal article while doing research at JDSupra dot com,” said Conference Panelist Adrian Lurssen and co-founder of JDSupra. “JDSupra puts your attorneys’ expertise frontand-center on LinkedIn, Google, Twitter and other websites,” pointed out Paul Ryplewski, a Conference organizer, LMA Bay Area President and Client Services Director at JD Supra. “Plus we deliver key legal news in your selected category directly into your inbox,” added Lurssen. http://www.jdsupra.com/
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“Thanks to Adam Stock’s leadership, we broke out of the linear thinking, one-option-only PowerPoint solution approach, by using Prezi to create our opening presentation,” said Conference Co-Chair Clare Ota, Marketing Coordinator at Murphy, Pearson, Bradley & Feeney. Later that day, in a panel discussion on video for law
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firms, Adam used Prezi to create a very impressive collection of images and video, http://prezi.com/xsh7ceqplstk/videofor-law-firms-adam-stock/. “Prezi was easy and fun to use and added a lot of variety to my visual display,” said Adam. http:// prezi.com/ “We’re using Basecamp as the organizing center of our website redesign and CRM roll out—it’s logical, accessible, and can distribute emails to select groups. It’s a Project Manager’s dream!” said Mee Mee Wong Marketing Director at Coblentz, Patch, Duffy & Bass LLP and member of the Conference planning committee. “Basecamp provided an easy communication hub that kept us all on track and moving forward,” said Kathryn McCarthy, Director of Facilities and Information Technology at Miller Starr Regalia, also on the Conference planning Committee. “We had all of our correspondence in one easy to use location,” said Anne Tang, Sr. Marketing and Business Development Coordinator at Bingham, also on the conference committee. http://basecamp.com/
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“We had great success with Wild Apricot to handle all of our Conference registration needs,” said Kirsten Germeraad, Business Development Manager at Goodwin Procter LLP. “Wild Apricot allowed us to identify all the various categories of registrants and allowed us to easily personalize conference update emails to different groups within the registered base,” chimed in Kim Stuart, Senior Manager, Business Development at SNR Denton. Easy & Affordable Membership Website Software. Wild Apricot is online membership software for associations, non-profits, clubs and subscription websites. It is a cloudbased system, so you can use it right from your web browser. And your volunteers can pitch in too, without installing any software! Prices start at just $25 per month. http://www. wildapricot.com/ Adam Stock opened the conference with a humorous texting video which other meeting planners may want to borrow, http://youtu.be/Q0x9KxBaL84. “The high interest in the LMA Tech Conference continues to amaze us,” said Stock. “It is a reflection of the high interest in, and importance of, these technologies to law firms from solo practices to large firms. People have commented that we do an excellent job of getting the word out about this conference. Our secret is that we use the marketing technologies that we have learned at the previous conferences to market the next conference. For example, anyone can see the Conference presentations by going to SlideShare from our web page at http://lmatechconference.com/presentations/.” n
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ETHICS QUARTERLY
Among the questions answered by rulings abstracted in this issue of Ethics Quarterly are: •
Does the tripartite attorney-client privilege among an attorney, an insured, and an insurer apply where a title insurer exercises its right under an insurance policy to retain counsel for its insured, a bank, to bring an equitable subrogation action based on a property lien? (10.1.3) • Does the litigation privilege bar a conspiracy claim against attorneys who allegedly engaged in affirmative misconduct to disrupt enforcement of a court-ordered remediation plan arising out of a dispute between neighbors? (10.1.5) • Is disqualification of plaintiff’s counsel warranted for posting on his firm’s website an allegedly misleading description of the case which defendant contends was prejudicial to resolution of the matter? (10.1.14) The Commentary is entitled: “Limitations on Disqualifying Conflicts Resulting from Preliminary Consultations.”
CASE NOTES 10.1.1 Rule 1-311: Unauthorized Practice of Law, Aiding and Abetting of; Attorney-Client Privilege Case: People ex rel. Herrera v. Stender (2013) 212 Cal.App.4th 614
ISSUE A City brought an Unfair Competition Law (B & P Code § 17200) action against an immigration law firm, an immigration lawyer not licensed to practice in California, and a former California lawyer. The City alleged, among other things, that the firm and lawyer had aided and abetted former lawyer, who had resigned from the state bar with disciplinary charges pending, in engaging in the unauthorized practice of law. Was
a preliminary injunction properly issued to require that the law firm and the non-California lawyer provide notice to its clients that the former lawyer had resigned from the bar pending charges, was no longer authorized to practice law, and notifying the clients of their right to fire the former lawyer, obtain return from the former attorney and the firm of unearned fees, and get their client files back?
HOLDING Yes. The Court of Appeal affirmed the trial court ruling granting the preliminary injunction. The Court of Appeal found that the injunction could be based on a violation of rules and statutes related to the unauthorized practice of law, even
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though those rules and statutes were intended for disciplinary purposes, not as the basis of a civil action. The UCL may be based on a statute the plaintiff cannot directly enforce. Nothing precluded the City from using the Rules of Professional
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Conduct as the asserted measure of the unlawful practice, as opposed to asserting the breach of the rules as an independent cause of action. (212 Cal.App.4th at 632, citations omitted.) It did not matter that neither the non-California lawyer nor his law firm were members of the California Bar. As a registered California law corporation under Business and Professions Code section 6167 entitled to practice law in California, the law firm was bound to adhere to the ethical rules applicable to individual members of the State Bar. (IbId.) Since the nonCalifornia lawyer controlled the activities, and alleged unlawful practices, of the law firm, he, too, was subject to liability for the law firm’s unlawful practices. (Id. at 634.) The Court of Appeal upheld the trial court’s findings that the lawyer and his law firm had aided and abetted former lawyer’s unauthorized practice of law. The lawyer and law firm argued that, since licensed firm attorneys signed the pleadings in federal court, they were responsible for the legal actions taken on behalf of clients, making it irrelevant whether former lawyer gave legal advice to the firm’s clients. But it was by the very act of assuming legal responsibility for the actions taken on behalf of firm clients that the lawyer and other attorneys in his firm enabled the former attorney to continue his law practice in giving advice to clients and developing legal strategies. (Id. at 638.) The lawyer and his firm could be liable for aiding and abetting the former attorney’s unauthorized practice of law even though the lawyer and former lawyer were both employees of the firm. The rule that agents/employees cannot act in concert with their principal does not apply where the actions of the agents are in pursuit of individual advantage rather than on behalf of the principal. In practicing law without a license, former lawyer was not acting on the firm’s behalf; rather the complaint alleged that the firm and non-California lawyer made it possible for former lawyer to continue practicing despite his resignation from the Bar. The signing of the pleadings by the lawyer and other firm attorneys was one means to aid the unauthorized practice of law. (Id. at 638-639.) Nor was the City’s UCL action an attempt to regulate the practice of law, in derogation of the prerogatives of the State Bar and the federal court to regulate the practice of law. There was a difference between regulating the practice of law, which the City was not allowed to do, and taking action to prevent a fraud upon the public, which was the gravamen of this action and which the City was authorized to do. (Id. at 640.) The injunction also was appropriate even though the former attorney had left the firm, the firm itself was no longer in operation, and there was assertedly no continuing risk that clients would continue to receive services from former lawyer in the mistaken belief that he was licensed to practice law. There was evidence before the trial court that the non-California
attorney saw the former attorney as an asset to the practice, facilitated the former attorney’s practice of law, assured clients that the former attorney continued to be their attorney, and told clients that the former attorney had not been forced to leave the firm. The injunction was needed to keep the nonCalifornia attorney from resuming such enabling conduct should former lawyer return. (Id. at 643.) The Court rejected the non-California attorney and law firm’s final argument that the mandatory injunction was improper because they were barred from presenting key evidence in their defense without revealing privileged or private client information. Dismissal of a case against an attorney on this ground is extremely rare and warranted only under extraordinary circumstances. (Id. at 646-647, discussing, among other cases, Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 794.) “Here, it is not apparent how clients’ confidential information would be necessary to defend against the [City’s] claims. The allegations of unfair business practices upon which the injunction was issued pertain to [defendants’] conduct regarding [former attorney’s] loss of the right to practice law,” such as what notice was given to the clients and the bar about the former attorney’s status and what clients were told and observed about whether the former attorney or a different attorney performed legal services. “It is not obvious how any details of the clients’ legal cases or legal advice they were provided would be required” to defend the case. (212 Cal.App.4th at 647.) Disclosure of the immigration clients’ identity would not constitute confidential information, even if disclosure carried the risk of the client being prosecuted or deported. The Court of Appeal acknowledged that “many clients of immigration attorneys face deportation or serious immigration problems.” (Id. at 649-650.) The Court nonetheless noted that at least some of the defendants’ clients were present in the United States legally and therefore available to provide testimony in support of defendants. The names of clients who were at risk could be redacted by the trial court. (Id. at 650.) More fundamentally, the claims against the defendants “are not based on the substance, content and details of their representation of their clients but, in essence, on their failure to protect the clients from, and active facilitation of, an unlicensed lawyer’s provision of legal services. The advice given to the clients on their legal matters is not the point. The point is simply whether they were unlawfully provided legal services by an attorney who had resigned from the bar with disciplinary charges pending and was not authorized to practice law. To allow [defendants] to avoid liability for permitting and assisting an unlicensed lawyer to provide legal services to their clients by invoking attorney-client privilege would turn the purpose of the attorney-client privilege—to protect clients’ right to legal counsel—on its head.” (Id. at 650-651.)
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10.1.2 Rule 3-310: Avoiding Representation of Adverse Interests Case: Davis v. EMI Group Limited (N.D.Cal. 2013) 2013 WL 75781
ISSUE In an action brought by the lead singer of a band against record labels and related entities for breach of royalty provisions, was disqualification of the firm representing the defendants warranted where: (1) the firm previously represented the lead singer and her band in negotiating the contracts from which the action arose; (2) among additional related tasks, the firm sent demand letters to defendants on plaintiff’s behalf; (3) the firm unsuccessfully sought a written conflict waiver from plaintiff; (4) two attorneys and one paralegal who worked on unrelated
matters for plaintiff and her band remain with the firm; (5) lead counsel for defendants was a senior firm partner at the time of the firm’s extensive representation of plaintiff and her band; but where (6) the firm’s representation of plaintiff and her band had ended 11 years before the current action was brought; and (7) all nine attorneys who had done work substantially related to the matters at issue in the current litigation had left the firm no later than the date the firm’s work for plaintiff and her band had ended?
HOLDING Yes. Rule of Professional Conduct 3-310(E) bars an attorney from representing a party adverse to a former client without the informed written consent of the former client where, in the prior representation, the attorney normally would have obtained confidential information from the former client material to the current matter. “When a substantial relationship has been shown to exist between the former representation and the current representation, and when it appears by virtue of the nature of the former representation or the relationship of the attorney to his former client confidential information material to the current dispute would normally have been imparted to the attorney or subordinates for whose legal work he was responsible, the attorney’s knowledge of confidential information is presumed.” (2013 WL 75781 at *2, quoting Global Van Lines, Inc. v. Superior Court (1983) 144 Cal.App.3d 483, 489.) The Court found disqualification was warranted in this case because of the “clear and substantial relationship” between the royalty agreements at issue in the current case and the firm’s prior representation of plaintiff and her band in negotiating the very same agreements. “That relationship is sufficient to create the presumption that [the firm] has confidential information material to the current matter and that this information is shared by all attorneys in the firm.” (2013 WL 75781 at *3.) The firm conceded that the matters it had handled for plaintiff and her band were substantially related to the current
litigation. Citing Goldberg v. Warner/Chappell Music, Inc. (2005) 125 Cal.App.4th 752, the firm contended that no vicarious disqualification was warranted since the attorneys who had handled the substantially related matters had not been with the firm for over a decade. The Court rejected that argument. Goldberg had held that no vicarious disqualification of defense counsel was warranted in an action brought by a former employee where a now-former partner who had had preliminary conversations with the plaintiff about her proposed employment contract had left the firm three years before plaintiff sued defendant. The departed partner was the only one aware of the consultation and had not opened a client file. In this case, by contrast, the firm’s relationship with the plaintiff was extensive. In addition, both senior defense counsel and 58 other current firm attorneys and paralegals worked at the firm during its work for the plaintiff and her band. Lead counsel’s assurances that he and the other employees had never received any confidential information about the lead singerplaintiff were “not sufficient to overcome the presumption that attorneys in the same firm share a close, fluid, and continuing relationship, with its attendant exchanges of information, advice, and opinions that create ample opportunity for imparting confidential information and impressions from one to another. (2013 WL 75781 at *4, internal marks and citation omitted.)
10.1.3 Tripartite Insurer-Insured Attorney-Client Privilege Case: Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076
ISSUE In an action brought by a bank for equitable subrogation and other claims in which bank’s title insurer was paying counsel to prosecute the action on behalf of insurer’s insured the plaintiff-
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bank, did a tripartite attorney-client relationship arise among the title insurance company, the insured bank, and counsel, making confidential communications among them privileged?
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HOLDING Yes. The Court first found that a tripartite relationship existed among title insurer, the bank, and the attorney retained by the insurer to represent the bank in the underlying action, even though there was no formal retainer agreement between the title insurer and counsel for the bank. Retaining counsel to represent its insured the bank was enough to establish the tripartite attorney-client relationship. (212 Cal.App.4th at 1091.) The tripartite relationship was not defeated by insurer providing counsel to its insured the bank under a reservation of rights. The reservation of rights was based on the timing of the tender of the claim to the insurer rather than on the merits of the underlying lawsuit. (Id. at 1092.) In addition, there was no evidence that the retained firm was acting as independent Cumis counsel for the bank rather than as counsel retained by the insurer for its insured, the bank. (IbId.) Even if the reservation of rights did create a disqualifying conflict, the right to assert that conflict would belong exclusively to the insured bank rather than its litigation adversary. (IbId.) And, if counsel were serving as Cumis counsel, counsel and the bank would still be obligated to share with the insurer information concerning the representation except privileged material related to the coverage dispute. (Id. at 1093, quoting Civ. Code § 2860(d).) The Court of Appeal rejected the trial court’s conclusion that the tripartite relationship exists only where the insurer pays for counsel to defend an action rather than, as here, for counsel to initiate an action. The Court of Appeal called this an “artificial distinction.” (IbId.) The Court pointed out that the insurance
policy both obligated insurer to defend its insured in an action and gave it the right to initiate and prosecute an action, such as a lawsuit to quiet title against an adverse claim. (Id. at 1093-1094.) The Court further explained that, as discussed in Jarchow v. Transmerica Title Ins. Co. (1975) 48 Cal.App.3d 917 and illustrated by the current action, it is often necessary for a title insurer to initiate an action to protect its insured’s title. In the current action, another bank foreclosed on the underlying property, jeopardizing the insured bank’s assertedly superior lien. Therefore, the means of the title insurer to protect its insured’s lien rights was to initiate this action for equitable subrogation. “If a tripartite attorney-client relationship did not arise in such a situation, the title insurer would be unable to communicate with counsel retained to represent the insured without the risk of being forced to disclose confidential or privileged information.” (221 Cal.App.4th at 1095.) While California case law addressing the tripartite attorney-client relationship to date has done so only in the context of liability policies, no case has limited the principle to such policies or held the relationship does not apply when a title insurer initiates litigation pursuant to the terms of the policy. (Id. at 1096.) Note: The Court of Appeal went on to conclude that the insured bank had not waived the privilege by failing to submit a privilege log in response to earlier discovery and that the documents identified in a later submitted privilege log were covered by the attorney-client privilege. (Id. at 1097-1101)
10.1.4 Expert. Disqualification of Case: Ziptronix, Inc. v. Omnivision Technologies, Inc. (N.D.Cal. 2013) 2013 WL 146413
ISSUE In a patent dispute, was disqualification of a defense expert warranted where expert signed a non-disclosure agreement with plaintiff, but no retainer agreement had been signed,
plaintiff shared no confidential information with expert, and plaintiff had no contact with expert for nearly two years after the NDA had been signed?
HOLDING No. Under Hewlett-Packard Co. v. EMC Corp. (N.D. Cal. 2004) 330 F.Supp.2d 1087, disqualification of an expert in a federal question action generally is warranted only where: (1) the party seeking disqualification had a confidential relationship with the expert and (2) the party seeking disqualification disclosed confidential information to the expert relevant to the current litigation. The Court in this case found neither element satisfied. The NDA did not establish a confidential relationship between the plaintiff and expert. The NDA was not a retainer agreement, addressing neither fees nor the scope of the retention. After expert signed the NDA, plaintiff gave
expert no consulting work or informed expert what patents were at issue in the current litigation. (2013 WL 146413 at *2.) As to the second element in the expert disqualification analysis, there was no dispute that plaintiff had shared no confidential information with expert. (Id. at *3.) Nor did considerations of fairness warrant disqualification of expert. “Plaintiff showed no interest in working with [expert] even as this case moved toward claim construction, and Plaintiff only belatedly contacted [expert] after she contacted Plaintiff almost two years after the NDA was signed. It is not clear from Plaintiff’s conduct that it intended to retain [expert].” (Id. at
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*4.) It was plaintiff’s own inaction over the nearly two years after the NDA was signed that precluded plaintiff’s retention of
expert, not any improper motive by defendant in reaching out to expert. (IbId.)
10.1.5 Civ. Code § 1714.10; Litigation Privilege (Civil Code §47(b)); Attorney-Client Privilege Case: Rickley v. Goodfriend (2013) 212 Cal.App.4th 1136
ISSUE In a dispute between next-door neighbors concerning the removal of contaminated debris from both properties, did the litigation privilege bar plaintiffs from amending their complaint to add claims against defense counsel for civil conspiracy where plaintiffs alleged that counsel had conspired with their clients,
the neighbor-defendants, to engage in affirmative misconduct that interfered with a court-approved remediation plan and alleged that counsel disbursed funds from the attorneys’ trust account in a manner to avoid remediating the debris on plaintiffs’ property?
HOLDING No. California Civil Code section 1714.10 prohibits the assertion of a cause of action against an attorney for a civil conspiracy with his or her client arising out of his or her attempt to contest or settle a dispute, and which is based on the attorney’s representation of the client, without leave of court. “Section 1714.10 was intended to weed out the harassing claim of conspiracy that is so lacking in reasonable foundation as to verge on the frivolous.” (212 Cal.App.4th at 1148, emphasis added by the Rickley court, internal quotation marks and citations omitted.) A court will allow such a cause of action to be asserted only if the court determines that the party seeking to file it has established a reasonable probability of success on the merits. (Civ. Code § 1714.10(a).) Section 1714.10 does not apply if the attorney has an independent legal duty to the plaintiff or the attorney has acted in furtherance of his own financial gain. (Civ. Code § 1714.10(b).) “A license to practice law does not shield an attorney from liability when he or she engages in conduct that would be actionable if committed by a layperson. An attorney who commits such conduct may be liable under a conspiracy theory when the attorney agrees with his or her client to commit wrongful acts.” (212 Cal.App.4th at 1153.) In a 2-1 ruling, the Court of Appeal held that the trial court properly allowed the amendment because the proposed amended complaint alleged that the attorney-defendants violated two independent duties owed to plaintiffs: (1) the duty not to engage in affirmative misconduct that would interfere with the remediation of the contaminated debris and (2) the duty to disburse fairly the funds from the attorneys’ trust account designated to remove contaminated debris from both neighbors’ properties. (Id. at 1148.) The complaint alleged that defendant-neighbors’ attorneys interfered with the court-ordered remediation process by, among other things, contacting the third-party contractors doing the remediation work through unapproved emails thereby personally disrupting
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the remediation process, interfering with the remediation plan by one defendant-attorney misdirecting employees of the contractor, nd even personally digging in the contaminated soil after a judge told him in a telephone conference to stop. The majority concluded that, in these ways, the attorneys continued to the continuation of the nuisance. (Id. at 1155-1156.) If the allegations of the amended complaint were proven, the attorneys violated their duty to disburse funds for the remediation in way that did not unfairly benefit their clients. At the attorney-defendants’ clients’ request, the court in the action in which the remediation had been ordered required the defendant-neighbors to fund the remediation of both properties rather than awarding damages to plaintiff-neighbors. The attorneys held those funds in their client trust account and thus assumed a duty to disburse the funds fairly. Instead, as alleged in the proposed conspiracy cause of action, the defendantattorneys disbursed those funds without plaintiffs’ knowledge in a way that unduly favored their own clients’ interests. (Id. at 1156-1157.) The Court of Appeal agreed with the trial court that the litigation privilege was no bar to the conspiracy cause of action because the alleged misconduct, such as contacting the third-party contractors doing the remediation work through unapproved emails, was done to contravene the original remediation judgment rather than enforce it. (212 Cal.App.4th at 1162, distinguishing Rusheen v. Cohen (2006) 37 Cal.4th 1048.) “[T]he litigation privilege offers no protection for the collaborative efforts of the parties and their attorneys to interfere with a court-approved remediation plan. The privilege does not bar a civil conspiracy claim against a defendant and his or her attorney when they jointly act to interfere with efforts to remove contaminated debris from a neighbor’s property, resulting in a continuing nuisance.” (212 Cal.App.4th at 1164.) Nor was the conspiracy claim barred because defense of the claim would require disclosure of confidential communications
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between the attorney-defendants and their clients. The conspiracy claims against the attorney-defendants were based on their non-confidential communications with third parties, such as the contractors and their employees doing the remediation work, and their non-confidential conduct, such as by sending unapproved emails to the contractors and personally digging in the contaminated soil even after a judge told them to stop. “The determination of whether the attorney-defendants and [their clients] participated in a conspiracy to thwart the remediation effort and unfairly disburse the remediation funds can be resolved by the trier of fact without any evidence of statements between the attorneys and their clients.” (Id. at 1165.) In any event, dismissal of a claim because the attorneyclient privilege precludes an adequate defense is warranted only after a trial court conducts an evidentiary hearing and determines ad hoc measures to shield confidential material from public view would be inadequate to allow the action to proceed. No such evidentiary hearing had been held in this action. (Id. at 1165-1166.) Note: Justice Frances Rothschild dissented, contending that the attorney-defendants had no conceivable liability since they were acting only as agents of their clients. Thus, if the
allegations of the proposed conspiracy claim were true, the defendant-attorneys only were assisting their clients in the violation of the clients’ duties to the defendants rather than violating an independent duty the attorneys owed the plaintiffs. (Id. at 1166-1167, Rothschild, J. dissenting, asserting that the majority’s conclusion was irreconcilable with Doctors’ Co. v. Superior Court (1989) 49 Cal.3d 39.) Justice Rothschild also rejected the majority’s reasoning that the litigation privilege was inapplicable to the proposed conspiracy cause of action against the attorney-defendants because the attorney-defendants’ misconduct was taken to contravene, rather than enforce, the original remediation judgment. “The difference between enforcement and obstruction . . . is often in the eye of the beholder. Remediation work that plaintiffs view as implementing the judgment might be viewed by defendants as beyond the judgment’s scope, and conduct the defendants view as endeavoring to make sure the judgment is enforced strictly according to its terms might be viewed by plaintiffs as obstruction. The protection afforded by the litigation privilege is hollow if it can be defeated by a mere allegation that plaintiffs are right and defendants are wrong.” (Id. at 1168-1169, Rothschild, J., dissenting.)
10.1.6 C.C.P. § 1281.9: Arbitrator’s Duty To Disclose Case: Gray v. Chiu (2013) 212 Cal.App.4th 1355
ISSUE In a medical malpractice arbitration, must the judgment of a three-arbitrator panel in favor of the defense be vacated where, subsequent to commencement of the arbitration proceeding
but prior to the hearing, lead trial counsel for defendant-doctor affiliates with the firm providing the neutral arbitrator on the panel and neither counsel nor the arbitrator discloses that fact?
HOLDING Yes. The trial court should have granted plaintiff’s motion to vacate the arbitration award on the ground of the arbitrator’s violation of his statutory duty to disclose this information. In a consumer arbitration such as this one, the plain language of the applicable rule requires an arbitrator to disclose whether “a party, a lawyer in the arbitration, or a law firm with which a lawyer in the arbitration is currently associated is a member of ” the administering dispute resolution provider organization. (212 Cal.App.4th at 1363, quoting Ethics Standard 8 adopted by the Judicial Council pursuant to C.C.P. § 1281.5.) The arbitrator has a continuing duty to disclose. (212 Cal.App.4th at 1363-1364.) The Court of Appeal rejected defendants’ contention that plaintiff was estopped from seeking vacatur on this basis or had waived her right to do so. As applicable to this case, Standard 8 requires that the neutral arbitrator alone disclose the required information. (Id. at 1366.) There was no waiver, even though
plaintiff knew from the posters of the dispute resolution provider’s panel members in the hallways of the provider’s offices where the arbitration had been held over nine working days that lead trial counsel for defendant-doctor was affiliated with the provider. That is because the ethics standards could not be waived and because plaintiff did not become aware of the arbitrator’s violation of his disclosure obligation until months after expiration of the 10-day disclosure period after the arbitrator himself had become aware of defense counsel’s affiliation with the dispute resolution provider organization. (IbId.) California Code of Civil Procedure section 1286.2(a)(6) mandated vacatur of the arbitration award for failure of the neutral arbitrator to make the timely required disclosure. “While that rule seems harsh, it is necessary to preserve the integrity of the arbitration process.” (IbId.)
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10.1.7 Rule 5-200 and B & P Code § 6068(d): Duty Not to Mislead Court Case: In re Hubbard (S.D.Cal. 2013) 2013 WL 435945
ISSUE Was a one-year suspension from the bar of a federal district court warranted based on, among other things, a finding that, in the underlying Americans with Disabilities Action, respondent-member of the district court bar misled opposing
counsel and a Magistrate Judge into believing that the signature on a settlement agreement was that of his client-plaintiff, who also was his mother, when in fact the agreement had been signed after his client’s death by someone else?
HOLDING Yes. The Court found that this misconduct, as well as misleading the Magistrate Judge at a settlement conference about whether counsel had personally witnessed his mother’s deteriorating condition and about whether a decision had been made as to who would replace his mother as plaintiff in the underlying action after her death, warranted the one-year suspension from the bar sought by the Standing Committee on Discipline of the Southern District of California. Rule 83.4(b) of the Local Rules of the Southern District of California adopts as its standards of professionalism the standards of professional conduct applicable to members of the State Bar of California. The Local Rule expressly warns members of the district court bar that those standards are not exhaustive, referring members to the ethical rules of the American Bar Association. The Court found that respondent’s “intentionally deceptive and misleading conduct” in the underlying ADA action violated ABA Model Rules 3.3, 4.1(a), 7.1 and 8.4; California Rules of Professional Conduct 5-200 and 5-220; and State Bar Act §§ 6101, 6068(b), and 6068(d). The Court found that those violations amounted to
unprofessional conduct in violation of Local Rule 83.4. (2013 WL 435945 at *5.) The Court rejected respondent’s contention that he could not be disciplined for this conduct since the Magistrate Judge in the underlying action already had imposed monetary sanctions against him for the same conduct. “Though deterrence was a substantial reason for imposing the monetary sanctions, so was compensation—compensation for attorney’s fees incurred as a result of [respondent’s] misconduct. Unlike the purpose for the monetary sanctions, the purpose of this disciplinary proceeding is to consider [respondent’s] fitness to practice in this district and to protect the public from an unqualified or unscrupulous practitioner. Thus, the Court finds that imposing discipline in this proceeding would not amount to double punishment and it also would not be fundamentally unfair to [respondent].” (Id. at *6, internal citation and quotation marks omitted.) The Court also noted that Local Rule 83.5 specifically contemplates the imposition of discipline in addition to other sanctions. (IbId.) Note: Disclosure: The publisher of Ethics Quarterly was trial counsel for petitioner Standing Committee.
10.1.8 Rule 3-310: Avoiding Representation of Adverse Interests Case: Bernhoft Law Firm v. Pollock (S.D.Cal. 2013) 2013 WL 542987
ISSUE In an action by a law firm against a former client for unpaid legal fees, was disqualification of defense counsel warranted on the grounds that he was a former attorney at plaintiff-firm and, while at the firm, was the lead attorney representing client
in the underlying IRS tax proceeding for which the firm was seeking its fees and took the client and the IRS matter with him when he left the firm?
HOLDING Yes. There was “an obvious conflict of interest” between defense counsel, a former attorney at plaintiff-firm, and his client in defending the fee dispute. The legal fees defendant-client was refusing to pay largely were billed and approved by defense counsel when he was an attorney at plaintiff-firm. “In the event that [former client-defendant] refutes the validity of these fees during the course of this litigation, such an argument will require [defense counsel] to attack the appropriateness of his own representation, a position that the Court finds untenable.” Defense counsel could not zealously represent his client in this 36
fee dispute if it meant challenging the bills he approved and the services he provided. These circumstances created a substantial risk that counsel’s own interests would compromise his ability to represent his client, thereby creating a disqualifying conflict of interest. (2013 WL 542987 at *2.) Note: Since it disqualified defense counsel based on a conflict of interest between himself and his client, the Court declined to address whether defense counsel had established an attorneyclient relationship with his former firm or violated any duties he owed under that alleged relationship. (IbId. at note 3.)
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Ethics Quarterly is NOT affiliated with the San Diego County Bar Association.
SPECIAL SECTION: ETHICS QUARTERLY
10.1.9 Attorney-Client Privilege Case: In re High-Tech Employee Antitrust Litigation (N.D.Cal. 2013) 2013 WL 772668
ISSUE A federal antitrust action included allegations that a group of employers colluded to avoid poaching each other’s employees and to stabilize compensation packages. Was Defendant A entitled to withhold emails from plaintiffs based on the attorney-client privilege that were sent between, on the one hand, the chairman of the board of directors of Defendant B who simultaneously served as a consultant or part-time employee to Defendant A
and, on the other hand, counsel for Defendant A, where this consultant/employee’s duties included serving as an advisor to Defendant A’s management and board on corporate strategy and advising on internal business processes, but where the emails in which the consultant/employee was included were sent to his email address at Defendant B and Defendant B reserved the right as a matter of policy to review its employees’ emails?
HOLDING Yes. The duties of this consultant/employee as well as the sensitive nature of communications with him indicated that, both before and after he signed a formal part-time employment contract with Defendant A setting forth his duties, the consultant/employee was the functional equivalent of an employee and had substantial input into the development of the issue at the heart of the litigation. Under United States v. Graf (9th Cir. 2010) 610 F.3d 1148, communications between him and counsel for Defendant A were eligible to be covered under Defendant A’s attorney-client privilege. (2013 WL 772668 at *4.) The Court rejected plaintiff’s contention that Defendant A had waived the privilege over such communications by sending them to the consultant/employee at his email address at Defendant B. The Court applied the four factors articulated in In re Asia Global Crossing, Ltd. (S.D.N.Y. 2005) 322 B.R. 247 concerning whether the attorney-client privilege applies to attorney-client communications sent to the email address at a third-party corporate employer: (1) whether Defendant B had a policy banning personal use of the company’s email system; (2) whether Defendant B monitored its employees’ use of email; (3) whether Defendant B, a third party, had the right to access the computer and emails; and (4) whether the consultant/employee or Defendant A were aware of Defendant B’s use and monitoring policy. (2013 WL 772668 at *6, citing In re Asia Global Crossing, Ltd., 322 B.R. at 258.) Applying those factors to this case, the Court concluded that Defendant B’s policy that said that company email generally “should” be used only for company business fell slightly short of an all-out ban and this factor slightly favored Defendant A’s
claim of privilege. (2012 WL 772668 at *6.) As to the second factor, “a company’s failure to actually monitor employees’ emails or to have an explicit policy of monitoring the emails may suggest to employees that their emails in fact remain confidential.” (Id. at *7, footnote with citations omitted.) While Defendant B’s code of conduct reserved the right to monitor emails sent over its computer system, there was no evidence that Defendant B actually did monitor its employee’s emails, further weighing in favor of the assertion of the privilege. (IbId.) The Court found that the third and fourth factors weighed against the assertion of the privilege since Defendant B had the right to access the emails and the consultant/employee, who also was chairman of Defendant B, had at least constructive knowledge of the company’s policy reserving the right to monitor emails. (IbId.) Although the factors split in favor of and against the application of the privilege, the Court found that the importance of the privilege and the lack of evidence that Defendant B actually monitored employee emails warranted a finding that receipt of the emails at consultant/ employee’s Defendant B email address did not destroy the privilege. (IbId. See also Id. at note 63, quoting United States v. Mett (9th Cir. 1999) 178 F.3d 1058, 1065: “[W]here attorneyclient privilege is concerned, hard cases should be resolved in favor of the privilege, not in favor of disclosure.”) Note: The Court reviewed the sample communications Defendant A submitted for the Court’s in camera review and concluded they were all privileged since they all involved either seeking or receiving legal advice. Plaintiffs were given a deadline to seek in camera review of whether the privilege applied to other withheld documents. (Id. at *8.)
10.1.10 Rule 5-210: Attorney As Witness Case: U.S. v. Murray (N.D.Cal. 2013) 2013 WL 942514
ISSUE In a criminal action alleging a scheme to defraud outside investors in an investment fund, was disqualification of defense counsel warranted where the government presented documents that defense counsel received allegedly tainted funds in partial
payment of fees and then allegedly laundered a substantial portion of those funds by sending them to defendant’s father who in turn sent a substantial portion of the funds to defendant and an entity defendant controlled? Attorney Journal | Volume 117, 2013
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HOLDING Yes. The Court first found that there were two distinct kinds of conflicts of interest between defense counsel and his client. First, defense counsel has an interest in funds the government claims were tainted. Under ABA Model Rule 1.8(i), a lawyer is, with limited exceptions not applicable here, prohibited from acquiring a proprietary interest in litigation the lawyer is handling for a client. (2013 WL 942514 at *2.) It is not true that defense counsel and his client have aligned interests in resisting a finding of a conflict of interest simply because they have a joint interest in establishing that the transferred funds were not tainted. Defendant would be an important witness in establishing the circumstances of the transfer of funds, but such testimony would risk waiving his Fifth Amendment rights. “The calculus of weighing the costs and benefits of waiving [defendant’s] Fifth Amendment rights in the hearing on conflict of interest differs between [defendant] and [defense counsel];” defense counsel not only has the transfer of the received funds at risk, but also compensation for his continued representation of the defendant; and defense counsel does not have the same personal stake in the underlying criminal action as his client does. (Id. at *2.) Second, because defense counsel had received a portion of the allegedly tainted funds, defense counsel had become “at the
very least a potential percipient witness.” That implicated the advocate-witness rule, reflected in ABA Model Rule 3.7(a) and California Rule of Professional Conduct 5-210(c) generally prohibiting an attorney from acting as both a trial advocate and a witness on a contested issue. Defense counsel may have knowledge as to the rightful ownership of the allegedly tainted funds. (Id. at *3.) The Court found that defendant could not waive the conflict of the attorney serving as both advocate and witness by consenting to it even though California Rule of Conduct 5-210(c) allows such waiver with the informed written consent of the client. Federal courts have an independent interest in ensuring that criminal trials are conducted within the bounds of ethics and that such trials appear to be fair to observers. (Id. at *5, citing Wheat v. United States (1988) 486 U.S. 153, 160.) The Court was unwilling to condone defense counsel’s continued representation of the defendant given that counsel’s receipt of allegedly tainted funds effectively amounted to an actual conflict of interest between his client and him. Counsel’s potential role as a trial witness would be “particularly problematic” since the government was investigating whether counsel was a knowing participant in the alleged money laundering scheme. (2013 WL 942514 at *5.)
10.1.11 Rule 3-110: Duty of Competence Case: Dizon v. Wells Fargo (N.D.Cal. 2013) 2013 WL 978191
ISSUE In an action challenging a bank’s foreclosure actions, were referral of plaintiff’s counsel to the Standing Committee on Professional Conduct and monetary sanctions warranted where counsel: (1) failed to respond to bank’s motion to dismiss; (2) failed to comply with a court order to send a copy of a Magistrate
Judge’s recommendation that the action be dismissed with leave to amend two claims to counsel’s client and file a declaration that he had done so; and (3) failed to file a declaration stating that he had complied with a later court order to send a subsequent order dismissing the action to his client?
HOLDING Yes. The Court initially observed that this case was “one of many” in which this attorney had failed to respond to a dispositive motion and court orders. (2013 WL 978191 at *2, collecting cases.) The Court found that counsel’s “pattern of missing deadlines, failing to oppose dispositive motions, and giving weak and often tardy excuses” amounted to bad faith. “The fact that [plaintiff’s counsel] has failed to prosecute nearly every action he has brought in this district shows that his disregard of the local rules and the courts’ orders is more than mere recklessness. His repeated failures to respond to orders to show cause amount to willful disobedience.” (Id. at *3.) While Counsel’s disrespect for the Court was troubling, it
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was his clients who were most keenly harmed by his failing to prosecute their claims. The Court acknowledged that lawsuits challenging foreclosure proceedings were difficult to win and may have been dismissed even had plaintiff’s counsel opposed motions to dismiss. But plaintiff’s counsel “is representing plaintiffs attempting to stave off or in throes of losing their home as part of the mortgage crisis. These clients are potentially more vulnerable than some others who may have a greater opportunity to vet a prospective attorney. And he is doing his clients no service by bringing claims and then failing to represent their interests. He is, in fact, shirking his duty as an attorney” to perform competently. (IbId., citing Cal. Rule of
Attorney Journal | Volume 117, 2013
Ethics Quarterly is NOT affiliated with the San Diego County Bar Association.
SPECIAL SECTION: ETHICS QUARTERLY
Prof. Conduct 3-110(A).) To protect the public, the Court referred plaintiff’s counsel to the Northern District of California’s Standing Committee on Professional Conduct for further investigation and discipline.
To deter counsel’s future misconduct, the Court ordered counsel to pay $1,000 in sanctions to the Clerk of the Court. (2013 WL 978191 at *4.)
10.1.12 Rule 3-310: Avoiding Representation of Adverse Interests Case: Sharma v. VW Credit, Inc. (C.D.Cal. 2013) 2013 WL 1163801
ISSUE In a putative class action alleging creditor failed to provide borrowers with statutorily mandated notice of rights, was disqualification of plaintiffs’ counsel warranted where plaintiffs’ counsel worked on clearly substantially related
cases for defendant while an associate at the firm representing defendant, but where defendant waited 16 months before bringing a motion to disqualify less than six months before plaintiffs’ motion for class certification was due?
HOLDING No. The Court found that defendant’s delay in bringing the motion was unreasonable. While no trial date had been set, the imminent date for filing plaintiffs’ certification motion was a “crucial step” in a putative class action and had been preceded in this case by a great deal of discovery work. (2013 WL 1163801 at *4.) The delay could not be excused by defense counsel’s asserted informal efforts to get plaintiffs’ counsel to withdraw from the case. Since the grounds for disqualification were so “black and
white” given the relationship between the current action and the matters on which plaintiffs’ counsel had worked when he was employed at the firm representing the defendant, a potential resolution of the request to withdraw on some “middle ground” could not justify the delay. (Id. at *5.) The Court further found that defendant would not have been prejudiced by moving to disqualify earlier and plaintiffs would have been prejudiced had the motion been granted after such a long, unjustified delay. (Id. at *6.)
10.1.13 Rule 3-310: Avoiding Representation of Adverse Interests Case: Novelty Textile, Inc. v. Windsor Fashions, Inc. (C.D.Cal. 2013) 2013 WL 1164065
ISSUE In a copyright dispute, plaintiff’s counsel sent a pre-filing cease-and-desist letter to Defendant A. Was disqualification of plaintiff’s counsel warranted where: (1) Defendant B was a member of a trade group, which plaintiff’s counsel served as one of several general counsels, that offered as a benefit a free legal consultation; and (2) an employee of Defendant B consulted with plaintiff’s counsel after Defendant A demanded
indemnification from Defendant B; but where (3) Defendant B’s employee, knowing plaintiff’s counsel had sent the letter to Defendant A, failed to tell plaintiff’s counsel during the consultation the name of the company that had demanded indemnification from Defendant B at a time plaintiff’s counsel was unaware of any indemnification arrangement between the two companies?
HOLDING No. The Court held that Defendant B’s membership in a trade group that offered free legal consultations and that plaintiff’s counsel served as one of several general counsels was not enough by itself to create an attorney-client relationship between plaintiff’s counsel and Defendant B. There at least had to be an actual communication between one of those general counsels and a member of the trade group. (2013 WL 1164065 at *3.) The Court noted that plaintiff’s counsel disputed that he had ever met with Defendant B’s employee. Assuming the employee had met with plaintiff’s counsel, to disqualify plaintiff’s counsel where an employee of the defendant knew counsel was adverse
to his employer “would clear the way for one party to disqualify opposing counsel at will.” (IbId.) Given that the employee went to see plaintiff’s counsel before suit was filed against the employee’s employer but after plaintiff’s counsel had sent a pre-filing cease-and-desist letter to a company that demanded indemnification from employee’s employer and yet withheld this information from plaintiff’s counsel, disqualifying plaintiff’s counsel “does not protect a client from an attorney’s conflict of interest because the client knowingly created the conflict. If a client knowingly creates a conflict of interest, he cannot then ask the court to protect him from himself by disqualifying
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the innocent attorney.” (Id. at *3.) “Although under normal circumstances a preliminary meeting between an attorney and a potential client creates a confidential relationship, where, as here, the client went into the meeting with opposing counsel knowingly and intentionally, it is not appropriate to disqualify the innocent attorney.” (IbId.) Note: The Court recognized that Defendant B’s employee was not an attorney and apparently not a native English speaker. Had the employee innocently disclosed significant
confidential information about Defendant B to plaintiff’s counsel, the Court may have taken steps to protect Defendant B’s interests. But here Defendant B’s employee intentionally altered the facts of the case that he presented to plaintiff’s counsel, demonstrating that he had some understanding that he should not be giving certain information to plaintiff’s counsel and reducing the possibility that he actually communicated confidential information during their meeting. (Id. at *3.)
10.1.14 Rule 1-400: Attorney Solicitation; Rule 5-120: Trial Publicity Case: Ramirez v. Trans Union, LLC (N.D.Cal. 2013) 2013 WL 1164921
ISSUE In a putative class action for violation of consumer protection laws against a credit reporting agency for erroneously reporting information about putative class members’ inclusion on a federal list of persons blocked from loans because of their connection with terrorist groups, was disqualification of plaintiffs’ counsel warranted where, after the action was filed, plaintiffs’ counsel
posted on his website allegedly false information about credit agency’s response to plaintiff’s request to remove his erroneous inclusion on the list and by plaintiffs’ counsel inviting others to contact plaintiffs’ counsel if credit bureau refused to correct similar false alerts?
HOLDING No. The posting did not violate Rule 1-400, the ethical rule addressing attorney solicitation. That rule defines a solicitation as a communication “(a) delivered in person or by telephone, or (b) directed by any means to a person known to the sender to be represented by counsel in a matter which is a subject of the communication.” (Cal. Rule of Prof. Conduct 1-400(B) (2).) “Because the posting on counsel’s website does not fall within either category, it is not a solicitation and therefore does not violate Rule 1-400.” (2013 WL 1164921 at *3, citations omitted.) The Court also concluded that the posting did not offend Rule 5-120, the ethical rule addressing trial publicity. That rule generally prohibits an attorney from making “an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the member knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” (Cal. Rule of Prof. Conduct 5-120(A).) The rule does not prohibit statements about the claim involved and,
except when prohibited by law, the person involved. (Cal. Rule of Prof. Conduct 5-120(B)(1)-(2).) The credit reporting agency contended that the statement in the posting that the agency did nothing in response to plaintiff’s request to remove the false alert about plaintiff’s inclusion on the list was false, citing plaintiff’s deposition testimony. The Court, however, pointed out other portions of plaintiff’s deposition testimony where plaintiff described his alleged difficulty in getting the reporting agency to remove the false report. In light of that, the Court could not find that the posting was materially false or misleading. (Id. at *4.) Moreover, the Court found that the statements in the posting fell “well below” the prohibition on extrajudicial statements likely to prejudice an adjudicative proceeding. “Indeed, Defendant does not cite a single case in which an attorney was found to have violated Rule 5-120 based on a website, and certainly no case in which a court disqualified counsel based on a website posting about a case.” (IbId.) In light of this, the Court found both disqualification of and sanctions against plaintiff’s counsel unwarranted. (Id. at *5.)
10.1.15 Rule 3-110: Duty of Competence Case: In re Haynes (N.D.Cal. 2013) 2013 WL 1195524
ISSUE Was disbarment from the bar of a federal district court warranted based on evidence of counsel’s misbehavior in two actions, which included (1) using profanity in written and
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oral communications with opposing counsel, including using profane and demeaning insults; (2) failure to pursue matters with diligence and competence, including failing to file timely
Attorney Journal | Volume 117, 2013
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oppositions to dispositive motions and failing to serve discovery responses, resulting in terminating sanctions; (3) failing to notify a client that her case had been summarily dismissed as a result of counsel’s failure to file a timely opposition to a summary judgment motion; (4) filing an appeal on behalf of a client despite the client’s express emailed insistence that no appeal be filed in the matter; (5) failing timely to pay sanctions and otherwise comply with court orders; (6) delaying for 18 months return of a client’s files after counsel’s discharge
despite numerous requests; (7) physically threatening opposing counsel and spewing profanities in a courtroom hallway in connection with a discussion about discovery matters, making opposing counsel fearful for his physical safety and requiring the intervention of federal law enforcement officers; (8) filing misleading statements with the court about his conduct; (9) failing to cooperate with the federal disciplinary committee in the course of this action and where (10) counsel had engaged in misconduct in three other cases?
HOLDING Yes. The motion for summary adjudication of the disbarment petition of the Northern District of California Standing Committee on Professional Conduct was granted. The Court found that disbarment from the federal district court was warranted even were the only misconduct at issue counsel’s failure to fulfill his ethical duties toward his clients in the two cases on which the disciplinary charges primarily were based. (2013 WL 1195524 at *43.) “In addition, however, the undisputed evidence reveals an ongoing pattern of failure to comply with court orders, failure to follow the rules of practice, and professional misconduct involving abusive and antagonistic behavior toward opposing counsel.” (IbId.) The Court further pointed out that counsel had failed to cooperate with the Standing Committee at every turn. He sought multiple continuances of every deadline set by the court. “His
written work product is sloppy, bordering on incomprehensible, and replete with typographical and grammatical errors, making it difficult for the court to even understand his arguments. In short, he has failed to practice competently.” (Id. at *44.) Counsel compounded this by refusing to accept responsibility for his actions or even acknowledge that he had done anything wrong, casting blame instead on opposing counsel, the judges of the Northern District, the Standing Committee and his own clients for his professional failings. (IbId.) Accordingly, the Court concluded that only disbarment of counsel would sufficiently protect “the public, the court, and other attorneys who practice at this court from the deleterious effects of [counsel’s] lack of professional responsibility.” (IbId.)
Important Update: No case abstracted in the previous edition of Ethics Quarterly has been accepted for review or otherwise rendered uncitable. Disclaimer: Counsel should read the full text of the cases discussed before relying on the necessarily limited discussion of them here. Counsel also should be mindful that some of the Court of Appeal cases addressed may be subject to depublication or review by the California Supreme Court. All cases should therefore be checked to confirm they are citable.
COMMENTARY
Limitations on Disqualifying Conflicts Resulting from Preliminary Consultations Daniel E. Eaton
Introduction A preliminary consultation in which a party discloses significant confidential information to an attorney with a view toward retaining the attorney normally creates a disqualifying conflict from later opposing that party in the connection with the subject matter of the consultation both for the consulting attorney and vicariously his firm, even where the prospective client does not actually retain the attorney. (Beery v. State Bar (1987) 43 Cal.3d 802, 811.) Normally, but not always. For example, in Goldberg v. Warner/Chappell Music, Inc. (2005) 125 Cal.App.4th 752, the Court of Appeal held that disqualification of the employer’s law firm in a wrongful
termination action was not warranted where, six years earlier, the plaintiff-employee had briefly consulted with one of the law firm’s partners concerning her contract with the employer and where the partner had left the law firm three years before the action was filed. The Court observed that the risk of attorneys at the defendant’s firm receiving confidential information about the opposing party through contact with the consulting attorney was effectively eliminated when he left the firm. “[A]n attorney’s presumed possession of confidential information concerning a former client should not automatically cause the attorney’s former firm to be disqualified where the evidence establishes that no one other than the departed attorney had any dealings
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with the client or obtained confidential information. . . .” (Id. at p. 755.) The Court noted that the trial court had found that the law firm had never opened a file for the employee; never billed her; had no notes or records in any file about the meeting; no documents were prepared; no telephone calls made; and the partner left several years before the instant litigation began. (Id. at p. 758. See also, In re Marriage of Zimmerman (1993) 16 Cal. App.4th 556, 564-565, holding no disqualification resulted from partner of counsel’s brief, preliminary consultation with opposing party, even though the consulting partner had offered his initial impressions of party’s case.) Is disqualification of opposing counsel warranted where a party knowingly consults with an attorney retained by an opposing party before counsel is aware of that party’s involvement in the matter for which counsel has been retained and where the consulting party fails to disclose that fact to the attorney? And is disqualification of an opposing party’s expert warranted where the expert had earlier signed the moving party’s non-disclosure agreement -- but no retainer agreement -- in contemplation of consulting with the party, but the party never disclosed the nature of, or any confidential information about, the matter on which the party contemplated using the expert’s services? Courts in two rulings abstracted in this issue of Ethics Quarterly answered both questions in the negative, suggesting additional limits on preliminary consultation as a basis for disqualification of an opposing party’s attorney or expert. A. Novelty Textile, Inc. v. Windsor Fashions, Inc.: Intentional Consultation with Opposing Counsel In Novelty Textile, Inc. v. Windsor Fashions, Inc. (C.D.Cal. 2013) 2013 WL 1164065 (EQ 10.1.13), plaintiff’s counsel represented a company with exclusive rights to unique graphic designs intended primarily to be used in the fashion industry. On behalf of his client, plaintiff’s counsel sent a cease-and-desist letter to a retailer that was allegedly misappropriating a design to which plaintiff owned a registered copyright. The company that received the cease-and-desist letter in turn demanded indemnification from the middleman company that sold it the allegedly infringing apparel, attaching the cease-and-desist letter to its demand. (Id. at *1.) The general management assistant of the company from whom indemnity had been demanded sought guidance about how to handle the matter from a manufacturers’ association to which the company belonged. One of the benefits of membership in the industry group was free legal consultation with one of several general counsels to the group including, as it happened, plaintiff’s counsel. The assistant admitted that he realized before the meeting that it was plaintiff’s counsel who had sent the cease-and-desist letter to the company that had demanded indemnification from the
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assistant’s employer, but went ahead with the meeting anyway. The assistant also admitted that he did not disclose to plaintiff’s counsel the apparel product in dispute, the company from whom his employer had received the demand to indemnify, or show counsel the cease-and-desist letter that plaintiff’s counsel himself had sent. Declarations filed by the assistant left it unclear as to whether he even had clearly disclosed the identity of his employer. The assistant also altered the facts of the controversy when he spoke to plaintiff’s counsel, telling him exactly half the units the assistant’s employer had sold to the company seeking indemnity and exactly half the price for which the products had been sold to the retailer, presumably to keep plaintiff’s counsel from recognizing that the dispute that prompted the consultation was the same as the dispute that prompted the cease-and-desist letter. (IbId.) Plaintiff’s counsel allegedly provided legal advice to the assistant about his employer’s indemnity obligations and advice about settling the claim. (Id. at 1-2.) Plaintiff eventually sued the retailer. The middleman company whose employee had consulted with plaintiff also was a defendant, though there was no indication in the ruling whether plaintiff later had named the middleman company itself or the retailer had brought the company into the action through a cross-claim for indemnity. The middleman company moved to disqualify plaintiff’s counsel based on two grounds: the company’s membership in the industry group that plaintiff’s counsel served as one of several general counsels and the alleged meeting between plaintiff’s counsel and the company’s general management assistant. The Court ruled that the middleman company’s mere membership in the industry group which plaintiff’s counsel served as one of several general counsels was not enough by itself to establish a disqualifying attorney-client relationship between them, notwithstanding the right to a free legal consultation that was a member benefit. (Id. at *3.) But did the alleged meeting between the defendant’s assistant and plaintiff’s counsel require plaintiff’s counsel to be removed from the case? As the use of the awkward phrase “alleged meeting” suggests, plaintiff’s counsel had no record of the meeting and disputed that it took place. (IbId.) The Court concluded that even if the meeting had taken place as described by the defendant’s assistant, no disqualifying conflict resulted from it. That is because the assistant went into the meeting knowing that counsel represented an opposing party and withheld from counsel information, such as the cease-and-desist letter or even the identity of the party that had demanded indemnity from the assistant’s employer, that “would have triggered [plaintiff’s counsel’s] duty to consider conflicts of interest.” (IbId.) Disqualifying plaintiff’s counsel under these circumstances “would clear the way for one party
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to disqualify opposing counsel at will.” (IbId.) Thus, the Court concluded, an “innocent attorney” who engages in a preliminary consultation with a potential client who goes “into [a] meeting with opposing counsel knowingly and intentionally.” (IbId.) B. Zipronix, Inc. v. Omnivision Technologies, Inc.: Expert—Use It or Lose It It takes more to disqualify an expert because of his past relationship with an opposing party than it does to disqualify a lawyer for the same reason. The presumption that confidential information was transmitted in such a relationship generally does not apply where the subject of the motion to disqualify is an expert rather than an attorney. At least in federal matters, disqualification of an expert on this ground generally is warranted only if the moving party can demonstrate that: “(1) the adversary had a confidential relationship with the expert and (2) the adversary disclosed confidential information to the expert that is relevant to the current litigation.” (HewlettPackard Co. v. EMC Corp. (N.D.Cal. 2004) 330 F.Supp.2d 1087, 1092, emphasis added, citation omitted.) In addition to these factors, courts consider whether disqualification of the expert would promote fairness to the parties and the integrity of the process. (IbId.) In Ziptronix, Inc. v. Omnivision Technologies, Inc. (N.D.Cal. 2013) 2013 WL 146413 (EQ 10.1.4), the Court considered whether disqualification was warranted where plaintiff and expert signed a non-disclosure agreement governing discussions with expert, according to the agreement, “related to certain scientific, technical and business matters.” (Id. at *2, quoting NDA.) The Court concluded that the NDA did not establish a confidential relationship between plaintiff and expert. The NDA said nothing about fees and nothing about the scope of work contemplated. “Plaintiff never gave [expert] any confidential information, never gave her any consulting work, and did not tell her what patents were at issue” in the litigation between plaintiff and defendant. (IbId.) In addition, there was no contact from plaintiff to expert for nearly two years after the NDA was signed. In the meantime, expert had signed a retainer agreement with defendant. The Court concluded that having signed the NDA did not preclude expert from doing so. There was no dispute that plaintiff had not shared confidential information with expert. (Id. at *3.) That left whether considerations of fairness or policy warranted expert’s disqualification. The Court concluded they did not. Plaintiff’s conduct for the nearly two years after the NDA was signed did not indicate that it intended to retain expert in this action. The Court found that any prejudice to plaintiff from now being unable to retain expert was the result of plaintiff’s own
inaction, not any illicit motive by defendant in reaching out to expert. Plaintiff did not show that defendant knew of the NDA when it contacted expert nearly two years after the agreement had been signed. Disqualification of expert would not have been warranted under the circumstances even if defendant had known about the NDA. (Id. at *4.) The lesson is that a preliminary non-disclosure agreement with an expert that results in no work and no fees for the expert does not preclude the opposing party from taking the expert off the shelf and using the expert for its own purposes. Conclusion A party may not dislodge opposing counsel from a case if the party affirmatively consults with counsel knowing counsel represents the opposing party in a matter in which the party expects to be joined, at least without disclosing facts of the party’s relation to the pending or imminent action that should trigger the attorney to conduct a conflicts analysis. A party may not dislodge an opposing expert from a case if the party signed a preliminary non-disclosure agreement with the expert and then passively avoids engaging the expert in a matter in which expert’s services may be sought by the other side. Whether a party acts intentionally or passively, the bare fact of a preliminary consultation with either an attorney or an expert may not be sufficient to keep the attorney or expert from later working for the other side. n 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 Association’s Legal Ethics Committee. The views expressed here are his own. Comments on the list may be sent to him at eaton@scmv.com.
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