Tuesday, March 31, 2015

New Webinar Recording: New Business Intake & Conflicts (Building the Business Case)

We saw tremendous interest in the recent webinar: New Business Intake & Conflicts (Making the Business Case to Invest).
For those unable to attend live, a recording is now available online via this link.
Session Details
Improving business acceptance can deliver significant value to law firms – including better financial performance, improved client service, reduced risk, and increased lawyer satisfaction.

But, while the benefits are substantial, getting key stakeholders to agree to investing in change is not always easy. In this session, speakers from three Intapp Open clients discussed how they successfully made the case within their firms, covering topics including:
  • Why their firms decided to make the investment in enhancing New Business Acceptance
  • Why treating intake and conflicts in an integrated manner made sense for them
  • Strategies and approaches they took to make the business case internally and secure buy-in
  • The impact on lawyer efficiency and return on their investment in Intapp Open
This session features speakers from Procopio, Lewis Roca Rothgerber and Miles and Stockbridge:

Monday, March 30, 2015

Engagements Matter (Conflicts, Disqualifications & "Hot Potatoes")

Interesting disqualification story including a bit of debate about engagement letters, a topic we've touched on repeatedly recently: "Greenberg Traurig Is Disqualified in 2 TitleMax Suits" --
  • "Greenberg Traurig and Atlanta partner Mark Trigg are fighting two judges' orders disqualifying them from defending auto title loan company TitleMax against lawsuits by competitors accusing it of unfair business practices."
  • "Watstein said there is no dispute that Greenberg Traurig represented Select Management Resources (SMR), an affiliate of the plaintiff companies (but not among the named plaintiffs). The sides also agree that last year SMR's general counsel specifically refused to waive Greenberg Traurig's conflict when the firm entered an appearance on behalf of TitleMax, the plaintiff companies' biggest competitor, Watstein said."
  • "There is also ample evidence that Greenberg provided substantial advice to some of the other plaintiff companies as part of its SMR duties, even though it did not have a written agreement with those entities, Watstein added."
  • "Greenberg Traurig has argued that it provided only sporadic representation to SMR. Over the course of eight years, its filings said, the firm billed for less than 34 hours involving five discrete issues handled by partners in its offices in Washington, D.C., and Houston. The firm added that no 'implied' attorney-client relationship existed between it and SMR's affiliates."
  • "Greenberg Traurig also has pointed to a 2006 engagement letter with SMR stating that it would serve as 'limited engagement-legal counsel' for 'matters that may be assigned to [the firm] from time to time.' No other entity is mentioned in that letter."
  • "Watstein responded that Greenberg Traurig "places a lot of emphasis on that initial engagement letter. But they subsequently provided substantial legal advice, which is the standard for proving an attorney-client relationship. I can't provide you a ton of legal advice, then claim, 'Sorry, I didn't represent you because we didn't have a signed letter identifying you as our client.'"
  • "Watstein said Greenberg's effort to dump SMR in order to take on TitleMax as a client violates the 'hot potato doctrine,' which bars any effort to avoid a conflict of interest by dropping one client to take on a more lucrative one."

Wednesday, March 18, 2015

More Conflicting Opinions on the Billable Hour – "Unkillable Business Poison"?

Several stories this week on economic matters touching risk issues. Following the article on business intake, client selection and revenue, yesterday we posted on "bombs waiting in our files," and today we continue the trend of pointing out provocative industry commentary, with a story in the Canadian Post: "The unkillable billable hour: How Canadian corporations are clinging to legal business ‘poison'" --

As detailed in the above article: "the Ontario Court of Appeal issued a ruling that questioned the traditional practice of hourly billing."
  • "'There is something inherently troubling about a billing system that pits a lawyer’s financial interest against that of its client and that has built-in incentives for inefficiency,' wrote Madam Justice Sarah Pepall in a decision that reviewed the size of a legal bill in the receivership of a London, Ontario-area cattle farm. The appellate decision confirmed a lower court ruling that had cut to $157,500 from $328,000 a bill that law firm Borden Ladner Gervais LLP had sent to PricewaterhouseCoopers for work done on a relatively simple matter that took two months to complete."
  • "Billable hours are 'poison' to the legal business because they’re an incentive for inefficiency, Mr. Carayiannis [head of Conduit Law PC, a firm specialising in AFAs] says. It makes more rational economic sense to connect the price of legal services with the value they bring to a client’s business... There is an inherent conflict of interest,” says Mr. Carayiannis of Conduit Law. 'It pits our clients’ interest in getting a fair value at a fair price for our services directly in conflict with the lawyer’s interest in maximizing his financial gain.'"
  • "Clients generally aren’t fussed about hourly rates if they’re content with the dollar amount at the bottom of the bill, Mr. Milstone [Cognition LLP] says. That might look okay on the surface, but it masks a problem. A firm’s hourly rates are typically based a firm’s need to cover overhead plus the profit expectations of the firm’s partners. Missing from the equation is the value the work is supposed to bring to the client. Mr. Milstone says an hourly rate might be a tool that helps begin a discussion on what a legal service should cost, but it shouldn’t be the only thing that goes into the mix."
  • "Amar Sarwal, vice president and chief legal strategist with the Association of Corporate Counsel, a Washington-based group that represents in-house lawyers at corporations around the world, believes Canadian in-house lawyers are in a unique position. With a small number of top-flight Bay Street firms serving Canada’s relatively short list of blue-chip financial institutions and corporations, the country’s in-house lawyers should have the marketing clout to bring rapid change to the legal industry. “Canada has a more concentrated legal market, and because of that, it has an opportunity to change faster than perhaps the U.S. market,” Mr. Sarwal believes."

Tuesday, March 17, 2015

"Bombs Waiting in Our Files" – A Former Law Firm GC on Client Outside Counsel Guidelines

At the recent Risk Roundtable in San Francisco, I had an interesting discussion with two senior risk professionals about client restrictions on "positional conflicts," and their firms' response strategies when facing OCGs with such carve outs.

Now from BNA comes a timely, no-minced-words, no-holds-barred analysis on the state of Outside Counsel Guidelines: "Some Corporate Clients Are Going Too Far With ‘Guidelines' for Counsel" highlights a talk given by Simon Chester at the recent Hinshaw LMRM event. The full article is worth a read. Here are some highlights of the highlights --
  • "Law firms must explain, negotiate, argue, push back and ultimately be prepared to walk away from business dangled by corporate clients that insist on unreasonable “guidelines” for outside counsel, panelist Simon Chester said Feb. 26 during a program on outside counsel guidelines at the 14th Annual Legal Malpractice & Risk Management Conference"
  • "A show of hands from the audience in response to Chester's questions supported his thesis that corporate clients are increasingly presenting guidelines for representation to their outside counsel, that those guidelines are getting tougher and that few law firm members feel confident they are aware of guidelines to which their partners have agreed."
  • "Chester said that while general counsel at his former firm, he assigned his summer associates to search the firm's document management system for outside counsel guideline packages. 'There were hundreds of them,' he stated. He said he and the firm's management team 'had no idea' of the extent to which his partners had agreed to those 'bombs waiting in our files' that 'were setting the terms and conditions for our interactions with our clients.'"
  • "Chester said at his former firm 'we would tell associates not to use the term ‘research' on their billing records. Instead, they were instructed to substitute terms such as 'reviewing options' or 'conducting analysis.'"
  • "Clients increasingly require law firms to sign off on agreements to subject themselves to the same privacy laws that govern the clients, which may include HIPAA, financial privacy laws... Additionally, he remarked, clients frequently insert provisions that all of their data must be encrypted and none may be stored on any portable electronic device. 'How confident are you that [your] lawyers do that?' he asked."
  • "More often than not, Chester said, outside counsel guidelines stipulate that the firm owes a duty of loyalty not only to the client but to 'the entire conglomerate' and prohibit any legal services, even tax work, for competitors."
  • "Chester said guidelines are including provisions that they trump any other agreements with the firm, including engagement letters, and may state flat out that the client 'will not adhere to any guidelines or standard terms imposed by outside counsel.'"
  • "He said it's not unusual for firm lawyers working with the clients not even to read the guidelines. 'They're prepared to sign off on anything that's going to keep the gravy coming,' he stated."
  • "Chester warned the audience that individual partners — 'particularly partners looking for origination credits' — cannot be relied upon to protect the firm's interests when clients present them with unreasonable outside counsel guidelines."

Monday, March 16, 2015

Is the Billable Hour a Conflict of Interest?

From the interesting-arguments-in-ethics department comes this provocative opinion piece by Ralph Baxter, who concluded a 23-year tenure as Chairman and CEO of Orrick a few years ago, and was named one of the "Top 50 Big Law Innovators of the Last 50 Years" by The American Lawyer: "The inherent client conflict of interest caused by hours-based billing" --
  • "For some time I have been troubled by the potential conflict of interest that hours-based billing causes between the lawyer and the client. The more I focus on it, the more profound the problem appears."
  • "Let me start by saying that I have deep confidence in the dedication to ethical conduct of the members of our profession. My concern here is not with their fundamental professionalism. Instead, it is a concern that, notwithstanding that professionalism, the hours-based billing model can put them at odds with their clients in ways they do not intend, and in ways they may not recognize. It is a structural issue, not a moral issue."
  • "It is not just that what is bad for the client is good for the lawyer. The model incentivizes the lawyer to make it worse for the client."
  • "And law firms need to take responsibility for what they are permitting to occur. A material gap has developed between the costs incurred and fees charged and what those costs and fees could be. At some point the fundamental fidelity firms owe their clients and their ethical responsibility not to charge an unreasonable fee require them to revamp their business and service models."

Thursday, March 12, 2015

More on Clients, Fees & Conflicts

In yesterday's interview, Anthony Davis talked about the impact of "less than optimally managed" client selection on firm financial performance:
  • "First of all, the pressure to collect has led a number of firms to go further than they traditionally did, or safely should, go in suing clients for fees. Today, they [law firm general counsel] are beginning to say to management: “We're seeing the tail end of the problem when it comes to needing to withdraw when clients don’t pay or suing for fees. You can fix this by designating someone responsible for the client suitability question during intake. When we seek to withdraw in the middle of an engagement and especially when we sue for fees, we face increased claims. Our insurers can see that we're not looking at the whole picture at intake and increase premiums. Let’s address these issues up front. Give us or someone else in leadership the authority to address this issues before new clients are accepted.”
A reader sent word of an update from BNA on this very topic: "The Ethics and Financial Impact of Dropping a Client for Nonpayment of Legal Fees," which provides a very detailed overview, packed with citations and notes, of the who, what, when, where and why on the matter.

The story starts simply enough: "'Filing suit 'against a current client to collect a fee creates an untenable conflict under [Rule of Professional Conduct] 1.7 between the lawyer's duty to that client and the lawyer's 'personal interest' in collecting his or her fee.' In re Simon, 20 A.3d 421, 27 Law. Man. Prof. Conduct 409 (N.J. 2011)."

But then gets complicated quickly, as the article digs into topics including:
  • Grounds for suing clients for non-payment of fees
  • Intersection of fee non-payment and grounds for withdrawal (or not)
  • Treatment of fee agreements (and fees due) when withdrawals are successful, prior to the conclusion of fixed-fee and contingent matters
  • Lawyer ability to pursue fees when discharged by the client
  • Standards and approaches for determining "reasonable" fees in these complex scenarios

Wednesday, March 11, 2015

In Conversation: Legal Leaders on Risk, Revenue, Business Intake and More

Here's a fascinating and informative exchange between two experts in the field: "Intapp In Conversation – Focus on: The Business of Risk" --

Anthony Davis, partner at Hinshaw & Culbertson (known as the lawyers' lawyers) sits down with Pat Archbold, head of Intapp's risk practice group to discuss market trends.

Anthony shares several observations (coupled with practical advice and steps firms can take to improve business intake, reduce risk, and improve firm financial performance).

Topics include:
  • The changing legal business climate
  • Improving client evaluation and engagement to boost firm financial performance
  • Navigating growth tied to laterals and mergers
  • Changing internal perceptions of the role of risk management
  • Shifting priorities and staffing models
  • The role of engagement letters and fee agreements
  • Malpractice trends and insights
  • Pat: To what extent are law firm general counsel considering broader factors than just ethical risk, including accounts receivable, when overseeing new client intake?
  • Anthony: General counsel have traditionally not been responsible for evaluating the whole issue of financial suitability. They've left it to the billing department to decide what billing standards to set, and traditionally general counsel did not see it as their role to look at the prospective client’s ability to pay as part of their role in managing intake.
  • Although this is new to them, they are starting to realize that these are issues – risks – that have to be addressed. And the question then is: Is it their domain? Is it their constituency? Or is it somebody else in the firm who should be making those determinations?
  • Because certainly general counsel are seeing the problem at the other end. Until recently, they often failed to see the connection between intake and fee suits until too late. When confronted with collection problems, they certainly say, "Why on earth did we take this client on?" but they didn't traditionally impose standards at the front end, because if they tried to, they were likely told by the business people and management: "Stay out of that, that's our problem." Except that it does become their problem at the end.
The complete article is definitely worth a read.

And those firms looking for more advice (and potentially assistance) from Anthony and his colleagues are encouraged to reach out directly.

Tuesday, March 10, 2015

Upcoming Webinar: New Business Intake & Conflicts (Making the Business Case to Invest)

Intapp is hosting a webinar featuring three law firm case studies: New Business Intake & Conflicts (Making the Business Case to Invest).
  • Date: Thursday, March 19th
  • Time: 9 am PST / 12 pm EST
  • Registration: Limited to select firms and partners. Please email Lea Schweitzer for more information.

Session Details

Improving business acceptance can deliver significant value to law firms – including better financial performance, improved client service, reduced risk, and increased lawyer satisfaction.
But, while the benefits are substantial, getting key stakeholders to agree to investing in change is not always easy. In this session, speakers from three Intapp Open clients will discuss how they successfully made the case within their firms, covering topics including:
  • Why their firms decided to make the investment in enhancing New Business Acceptance
  • Why treating intake and conflicts in an integrated manner made sense for them
  • Strategies and approaches they took to make the business case internally and secure buy-in
  • The impact on lawyer efficiency and return on their investment in Intapp Open
This session features from Procopio, Lewis Roca Rothgerber and Miles and Stockbridge, who will discuss the various business drivers, roadblocks and eventual paths to success they navigated at their firms:

Pat Archbold, head of Intapp’s risk practice group, will moderate the session, which will focus on these case studies and include time for audience Q&A. He also will provide a brief overview of Intapp Open and discuss how firms are using the software to achieve their strategic  goals including:
  • Evaluating new business in terms of profitability
  • Managing both financial and professional risk
  • Enhancing engagement letter management
  • Streamlining intake & conflicts for faster matter opening

Attendance is limited to select firms and partners. Please email Lea Schweitzer for more information.

Monday, March 9, 2015

More on Lawyers Leaving (Laterally or Otherwise) & Confidentiality

Following last weeks stories on lateral hiring and confidentiality issues, a reader sent notes to two related stories on the Lawyer Ethics Alert Blog. First: "Indiana Supreme Court imposes public reprimand on lawyer who required non-compete provision in associate’s employment agreement" --
  • "...the recent Indiana Supreme Court opinion which imposed a public reprimand on lawyer who required an associate to agree to a non-compete provision in an employment agreement and sent letters to the associate’s clients stating that he would be taking over the representation; however, he did not attempt to enforce the provision."
  • "According to the opinion, the lawyer’s law practice was primarily in social security disability law. He hired an associate in 2006 to work in his law office pursuant to an employment agreement which included a non-compete provision prohibiting the associate from practicing Social Security disability law for two years if his employment was terminated."
Next: "New York ethics opinion states that lawyers cannot reveal client confidences solely to respond to a former client’s criticism on a lawyer-rating website" --
  • "The opinion is: New York State Bar Association Committee on Professional Ethics Opinion 1032 (10/30/2014)."
  • "The opinion found that the above exception does not apply and that '(a) lawyer may not disclose client confidential information solely to respond to a former client’s criticism of the lawyer posted on a website that includes client reviews of lawyers.'"
  • "Bottom line: Lawyers be aware: according to this opinion, a lawyer may not include confidential information in responding to a negative posting by an ex-client (or current client for that matter) on a lawyer-rating website (or other third party website)."

Saturday, March 7, 2015

Breaking Bad Disqualification News

We first covered this story last September, involving efforts to disqualify a law firm working on behalf of the City of Chicago. It appears that coming out of the December denial of the attempt to disqualify the firm, the defendant drug companies have tried a different tack: "Judge won’t disqualify private lawyers representing Chicago in opioid lawsuit" --
  • "A federal judge on Monday denied a request for relief from a group of pharmaceutical companies being sued by the City of Chicago over the marketing of opioid painkillers."
  • "In the lawsuit that was later removed from state court to Chicago’s federal court, the City accused the companies of overstating the benefits of their drugs in a way that increased addiction and the city’s prescription and healthcare-related costs."
  • "The companies in September filed a joint motion, asking a judge to invalidate the contract between the City and Cohen Milstein Sellers & Toll – the law firm the City hired in 2013 to investigate and litigate the opioid matter – and issue an injunction barring the City from using the firm in this or any similar suit."
  • "They claimed they were entitled to this relief because the City improperly delegated governmental police power to a financially interested private party, with the police power being investigative subpoena power and the private party being Cohen Milstein."
  • "Further, the drug companies argued, the firm’s involvement violates city ethics rules and its financial interest in the outcome of the case creates a conflict of interest that violates their due process rights."
  • "In denying the motion, U.S. District Judge Jorge L. Alonso rejected those arguments and their latest attempt to get Cohen Milstein – a firm with 80 attorneys and offices in Washington, D.C., New York, Chicago, Philadelphia, Denver and Florida that is representing two California counties in similar litigation– booted from the case."

Friday, March 6, 2015

Confidentiality Compromised? (On Lawyer Whistleblowing and More...)

In "Financial Awards for Whistleblowing Lawyers" -- Kathleen Clark (Professor of Law, Washington University in St. Louis) and Nancy Moore (Professor of Law, Boston University Schoolf of Law) delve into some interesting questions:
  • "The federal government relies increasingly on whistleblowers to ferret out fraud, and has awarded whistleblowers over $4 billion under the False Claims Act and the Dodd-Frank Wall Street reform and Consumer Protection Act. May lawyers ethically seek whistleblower rewards under these federal statutes?"
  • This article is the first to conduct an in-depth analysis of several questions that are key to determining whether a lawyer may receive whistleblowing award under a federal program without violating state ethics law:
    • 1. When may a lawyer disclose a client’s confidential information to others?
    • 2. When does a lawyer’s obligation of loyalty preclude acting adversely to a client, including seeking personal benefit when engaging in conduct that is permissible for other purposes, such as to prevent or rectify harm to another?
    • 3. Are any of a lawyer’s obligations under state law preempted by the federal law that provides for financial incentives for whistleblowers?
    • 4. Which state’s law applies to lawyers who move from state to state as they work for national and international companies?
On unrelated confidentiality matters, California just issued an ethics opinion: "California Bar issues opinion on whether attorney can refuse to disclose confidential information in support of motion to withdraw from representation" --
  • "The California bar's ethics committee recently issued an opinion (Formal Op. 2015-192) attempting to clarify whether an attorney seeking to withdraw from a litigation for ethical reasons might have grounds for resisting a court order that would require the lawyer to disclose client confidences to a judge who wants more information before ruling on the motion.  Although it admits there is no on-point guidance in California, the committee urged lawyers not to reveal confidential information to support their withdrawal motion. If the judge insists, the committee said, there is no clear legal or ethical authority in California that either permits or forbids an attorney to comply with the court's directive."

Thursday, March 5, 2015

Laterals Leaving, Laptops and Leftovers

A reader sent word of a fascinating story of (alleged) intrigue tied to lateral lawyer movement and information governance: "Law firms clash over laptops taken by departing lawyers" --
  • "The suit by Pennsylvania insurance boutique Nelson Brown Hamilton & Krekstein initially sought the return of laptops taken by 14 departing lawyers to Lewis, Brisbois, Bisgaard & Smith, the National Law Journal (sub. req.) reports. The suit seeks damages under the Computer Fraud and Abuse Act."
  • "After the suit was filed last May, Lewis Brisbois returned the laptops, but erased and preserved the information they held, the story says. Now both law firms have hired computer experts to determine what information was on the devices."
  • "Jana Lubert, general counsel at Lewis Brisbois, told the National Law Journal that the laptops weren’t stolen. “It is important to note that at no time before or after the lawyers left Nelson Levine, which occurred over a year ago, was the data itself ever viewed by anyone who was not privileged and authorized to see it,” Lubert said."
Looking at the general information governance issue tied to lateral movement, and putting the merits of this particular case aside, now is a good time to note that no firm wants to find itself in the position of lawyers removing client information in an unmanaged fashion.

Some organizations are using technology tools to monitor abnormal lawyer document activity and providing early warnings by watching for unusual activity. This approach can give management early visibility so they can investigate and address any concerns before they become serious crises. (Interested readers can learn more about Intapp Activity Tracker and read a few testimonials from firms making use of the technology as a risk mitigation strategy.)

Disqualification News (and New Risks)

"DQ Risk: Representing Lawyers and Receiving Confidential Information About Their Clients" --
  • "The law firm at issue, AlvaradoSmith, decided to represent another law firm, Floyd & Buss, in a lawyer-client fee dispute against the Floyd firm’s former client, Shared Memory Graphics.  In the course of that dispute, the Floyd firm legitimately shared with AlvaradoSmith, and AlvaradoSmith legitimately received, Shared Memory Graphics’ confidential and privileged information (because this information was at issue in the fee dispute and the disclosure fell within exceptions to confidentiality and privilege)."
  • "When AlvaradoSmith later began representing an expert witness against Shared Memory Graphics in a fee dispute arising from the same underlying litigation, Shared Memory Graphics moved to disqualify AlvaradoSmith."
  • "Thus, Shared Memory Graphics was attempting to disqualify AlvaradoSmith even though the firm had properly received the confidential information and even though the firm was aligned against Shared Memory Graphics in both disputes.  Shared Memory Graphics was nevertheless successful in having AlvaradoSmith disqualified."
  • "With respect to fee disputes in particular, the court noted that the information from the former representation will not invariably be substantially related to the present matter."
  • "Some authority and logic suggest that, should the firm screen the lawyers who receive the nonclient’s confidential information, the firm might later avoid disqualification."
"Panel Reverses Law Firm's Disqualification" --
  • "A disqualification ruling in a Commercial Division case has been overruled by the Appellate Division, First Department. In Becker v. Perla, 651575/13, the unanimous panel Thursday upset Justice Shirley Kornreich's disqualification of Saul Feder and his firm, Regosin, Edwards, Stone & Feder, who was counsel to lead plaintiff, Ronny Becker."
  • "It was uncontested that Feder had represented defendant Daniel Perla in a prior matter, and that Becker was adverse to Perla in the current case."
  • "But the panel said that 'the present and prior matters are not substantially related, and [Feder] did not obtain confidential information from the defendants during the prior matter.'"

Wednesday, March 4, 2015

Ethics & People (Lawyers Lateraling, Staff Entitled)

A few interesting updates addressing the people side of the equation. First, we've had great fun messing with Texas and its ethics opinion that non-lawyer staff cannot have the word "officer" in their title. (As of yet, we have seen no CIO, CMO or COO take us up on any of our creative suggestions... The latest of which is replacing the word "officer" with "sheriff." And, to be fair, word is that Texas is reviewing this opinion. Or planning to.) Now comes the Philadelphia bar with an opinion that's a bit more on the loving side: "Ethics Panel Says Senior Nonlawyer Staffers May Be Designated as ‘Directors' or ‘Officers'" [opinion] --
  • "The committee expressed its disagreement with a controversial Texas ethics advisory that disapproved firms' use of such titles for nonlawyer employees."
  • "Echoing critics who convinced the Texas committee to reconsider its May 2014 opinion, the Philadelphia panel rejected the notion that state variants of ABA Model Rule 5.4—which disallows most forms of multidisciplinary partnerships between attorneys and other professionals—prohibit law firms from bestowing nonlawyers with titles such as Chief Information Officer, Chief Marketing Officer, Chief Financial Officer, Chief Operations Officer, Director of Human Resources, Director of Facilities or Executive Director."
  • "'It is clear that a lawyer's independent professional judgment must not be compromised by allowing non-lawyers to be partners in, principals of or have ownership interests in law firms,' the opinion states. 'The Guidance Committee does not believe, however, that any use of the word ‘officer' or ‘director' in the title of a non-lawyer employee of a law firm is improper.'"
Next, the District of Columbia offers clarity for those on the hunt for pastures (of the greener variety, either literally or metaphorically): "DC Bar to Lawyers: It’s OK to Change Firms: Business of Law" --
  • "Non-competes are generally regarded as acceptable for most professionals -- except lawyers. Now an ethics opinion from the D.C. Bar, which oversees professional responsibility for lawyers practicing in the nation’s capital, has clarified that a law firm can’t try to limit a departing lawyer’s new practice."
  • "Ethics Opinion 368, published earlier this month, found that a 'law firm may not provide for or impose liquidated damages,' set before a departure is announced, on a lawyer who later competes with the firm. The decision also suggests that the former firm may not try to collect fees for work done after the lawyer leaves, even if the matter originated with the firm."
  • "A firm also cannot restrict a lawyer’s “subsequent professional association,” the D.C. Bar said, but a departing lawyer doesn’t 'have an unlimited right to solicit firm partners or employees' before departure."

Event Reminder: San Francisco Risk Roundtable

We're seeing great response to our upcoming Risk Roundtable set for San Francisco next week (Wednesday, March 11th at the office of Orrick, Herrington & Sutcliffe LLP).
Measure Twice, Cut Once: Improving the ROI in your COI (conflicts of interest) / business acceptance process
Evaluating new business becomes more and more challenging as firms grow. Client demands are changing and regulatory pressures continue to increase. Effective acceptance processes that deliver quick results and improve management visibility and control is critical to firm operations (and financial performance).
This session will discuss how firms are impacted by and responding to these new changes – and how they’re leveraging people, process and technology to deliver new value to their lawyers and clients. 
  • Mike Williams, Information Services Manager at Robins Kaplan LLP, will discuss his firm’s initiative to enhance its new business acceptance process.
  • Industry expert, Meg Block, will provide an overview of trends and considerations facing firms looking to modernize their own practices, and share examples of different approaches organizations can take to execute these projects.
We’ll also have a short demonstration of Intapp Open (including some important new features).
And, as always, we’ll have plenty of time for open discussion, peer exchange and networking.

Attendance is by invitation only and is limited to qualified law firms and personnel. Please contact info@riskroundtable.com for more details.

Tuesday, March 3, 2015

Law Firm Conflicts – When the Subject (Patently) Matters

Interesting update (and commentary) from the IPethics and INsights blog on subject matter conflicts (a topic we've seen a fair share of stories on recently): "Mass. Sup. Ct. Schedules Oral Argument on Subject Matter Conflicts in Patent Prosecution" --
  • "How close is too close?  That is a question that has perplexed patent attorneys who prepare and prosecute patent applications for multiple clients in the same, or similar, fields of technology.  At least one state appeals court has decided to take this question head on."
  • "The case is presently set for oral argument on either April 6, 7, or 8, 2015.  Amicus briefs are due within two weeks of the oral hearing... According to the court’s public docket, to date no amicus briefs have been filed in this case."
  • "...this action arises from a lawsuit for malpractice filed against IP firm Finnegan Henderson by a former client and solo inventor, Christopher Maling. The complaint alleged that two different offices of the Finnegan law firm were simultaneously prosecuting patent applications on allegedly 'similar' eyeglass inventions for two different clients – Maling and a Japanese entity. Although both clients were awarded patents, Maling sued Finnegan on the basis of an alleged conflict of interest. According to Maling, he was allegedly unable to market a commercial version of his patented invention due to 'similarities' between Maling’s patent and the other client’s patent."
  • "Whether two inventions handled simultaneously by the same law firm are 'similar' enough to raise an ethical conflict of interest, or give rise to potential malpractice liability, are issues of considerable importance to the intellectual property bar."