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Weathering Storms

I’m not exactly enjoying the weather so far in 2018.  Here in the Northeast, as elsewhere, it’s been pretty darn cold.  The 10 inches of bomb cyclone snow we got a few weeks ago didn’t help.  And to top it all off, the weather reports have been pretty boring. 

Back in the 80’s (the decade, not the temperature), Lloyd Lindsay Young on WWOR (Channel 9) out of Secaucus, New Jersey was my favorite weatherman.  Every broadcast, Lloyd would give a shout-out — literally — to a different town in the tri-state area. 

Then one day, as with many local TV newscasters, Lloyd was gone.  My google search revealed that LLY moved to the Sacramento area; in other words, he traded in “Helloooo White Plains!” for “Helloooo Yolo!”

Unlike weathermen, lawyers can’t simply pick up and move to another state to ply their trade.  An increasing number of lawyers are being disciplined for engaging in the practice of law without being licensed in the jurisdiction in which they practice.  Many states have set up special committees tasked with monitoring lawyers and law firms to ensure that lawyers who practice in their states are not improperly holding themselves out (explicitly or implicitly) as being admitted to practice.  Some even troll law firm websites looking for violators.

In this global economy, where lawyers are regularly called upon to represent clients all over the country (or world), it’s sometimes easy to overlook these rules.  Don’t.  And even if your law firm or company has offices throughout the country, that doesn’t mean that you can simply decide to transfer offices to escape the cold weather.   

And lest you think that you can escape the harsh climates by transferring to, say, Phoenix, be careful what you wish for.  On balance, I think I’d rather stay in New York.  

 

 

Cobb’s Salad

Don’t publicly discuss confidential details of your representation of a client within earshot of others — particularly, reporters.


 

I Will Gladly Pay You Tuesday . . .

I like to think of myself as pretty open-minded when it comes to music — I like classical and classic rock; blues and bluegrass; opera and opry.  In an attempt to further broaden my musical horizons, I’ve been tuning my radio (that’s what people listened to before streaming, kids) to an alternative rock station.  One song that recently caught my ear was Missio’s “Middle Fingers.”   While the lyrics are a bit too R-rated for my taste, I found myself enjoying the song.

But after a few listens it hit me why I liked it:  It’s basically the same song as “Everything is Food,” from the 1980 movie “Popeye.”   Penned by Harry Nilsson, the Popeye soundtrack has about as much in common with alternative fare as Eugene the Jeep has with a Jeep Wrangler.  Still, Missio’s “I’ll just keep on throwing middle fingers in the air” sounds an awful lot like Paul Dooley singing “I will gladly pay you Tuesday for a hamburger today.”

So much for the alt rock.   And while you might expect this Tip to discuss copyright law issues,  it was Wimpy’s mantra that got me thinking.  The joke, of course, is that no one would hand over a hamburger in exchange for a promise to pay days later, long after the hamburger has been eaten.   It’s almost as silly as a lawyer representing a client at a trial based on the client’s promise to pay in full after the trial is complete.

Yet it happens.  And what else happens?  Once the trial concludes (perhaps in a manner not to the client’s liking), the client balks at paying.  In other words, the client gets the hamburger; the lawyers get the middle finger.   

To avoid this result, it’s a good idea to ensure, well in advance of  any scheduled trial or arbitration date, that all fees and costs incurred up to that point will promptly be paid or brought current, and that the client will provide a retainer or make some other arrangement to insure payment of fees and costs estimated to be incurred through the end of trial or arbitration.   And make sure you note that in your engagement agreement, so that the client isn’t surprised.

So as I continue to expand my collection of alt rock albums (that’s what we used to play on our hi-fi systems, kids), I’m hopeful that I can find something that doesn’t remind me of a certain spinach eating sailor.  Maybe something from the Face to Face . . .

 

 

“Joint” Representations

In 1971, folk-rock duo Brewer & Shipley released their pot smoking anthem “One Toke Over the Line.”  Although they wrote it as a joke, it ended up being their most (ok, only) commercially successful hit.  The song’s success peaked after VP Spiro Agnew publicly denounced it as subversive propaganda that “threatens to sap our national strength.”

At least one person missed Agnew’s missive:  bandleader Lawrence Welk.  Apparently unfamiliar with the word “toke,” Welk mistakenly thought the song was a “modern spiritual” (his words).  Days after Agnew’s statement, Welk featured it on his anything-but-subversive show, performed by the squeaky clean Gail Farrell and Dick Dale.

Welk’s accidental foray into the drug culture of the early ’70s is little more than a footnote to his oeuvre of polkas, show tunes and pop standards; it certainly didn’t tarnish his image.  But lawyers can’t afford to be confused about the subtleties of state and federal cannabis laws (even if they are unlikely to confuse Brewer & Shipley with Gail & Dale).

ABA Model Rule 1.2(d) forbids a lawyer from counseling a client “to engage, or assist a client, in conduct that the lawyer knows is criminal.”  While most (but not all) states now permit some form of marijuana use, it remains a Schedule I controlled substance under federal law and the possession, sale, distribution or use of cannabis is a federal crime.  On its face, Rule 1.2(d) does not distinguish between conduct that is both expressly legal under state law and expressly illegal under federal law (notwithstanding the Justice Department’s current policy not prosecute such crimes in states with regulated cannabis programs).  Not surprisingly, there is no nationwide consensus on the extent to which lawyers can ethically advise clients in the cannabis industry without running afoul of this seemingly common sense rule.

Authorities that have weighed in on the issue generally agree that advising as to the validity, scope, meaning or application of the state laws permitting the cultivation, distribution and use of marijuana is okay.  But some suggest that attorneys cannot counsel a client to engage in the cannabis business or assist a client in doing so, even where it is legal under state law.  Add to the mix the challenges faced by lawyers who are admitted both in jurisdictions that permit some form of cannabis and in those that prohibit it.

While the existing guidance is at best uncertain and at times contradictory, what is universal is the recognition that representations in this space involve some degree of risk.  Even if the client’s activities or proposed activities fully comply with state law requirements in the jurisdiction at issue, there are limits as to what a lawyer admitted to practice there can ethically advise on.   So before seeking to represent a client in this space, it is imperative to understand and carefully evaluate the risks involved, federal enforcement policy and applicable federal, state, and local laws and regulations.  Get down in the weeds, so to speak.

I Love a Parade!

The Risk Tip is itself devoutly apolitical, but recognizes that the coming days will offer occasion for many to exercise their First Amendment rights in favor of this or against that.  You or your loved ones might well participate in the festivities or a march, a counter-march, a counter-counter march, or even a double counter-festivities march.  Unfortunately, the behavior of a crowd does not always reflect well on all of its members, so it is wise to prepare for a variety of contingencies (not to mention the weather).  If you, or those you know, will be out and about, in an organized way, on Friday, Saturday, or in the future, consider the following points on managing your risk:

* Go with a friend; it’s always good to have someone looking out for you (and vice versa).  Have a plan for communicating or meeting up in case you get separated.
* Carry cash and a valid picture ID.
* Make sure your phone and other devices are fully charged; you may also wish to bring a portable charger.
* Be aware of your surroundings at all times.  If something doesn’t feel right, go home or back to your hotel.
* Keep your valuables in front pockets.  Bags are not permitted in some venues or events so check beforehand.  If you do carry a bag, keep it where it can’t be easily snatched or accessed.
* Have a contact plan to stay in touch with someone who isn’t at the march, but knows that you’re there.

Should the worst happen and your peaceable assembly suddenly turns not so peaceable:

* Do not resist law enforcement.  Just do what they say.
* Be respectful and polite when dealing with the authorities, whether it’s law enforcement, the National Park Service, whoever.

The attached clip provides some further guidance on how to behave in the event of an event at an event.  Above all, Remain calm!  All is well!

 

Go Flash, Go!

I have mixed feelings about the 1980 space opera (yes, that’s a term) Flash Gordon. Campy satire at its worst, it starred Sam Jones who, suffice it to say, was nominated for the first Golden Raspberry Worst Actor award (he narrowly lost to Neil Diamond in The Jazz Singer).  Then again, it featured a pre-Bond Timothy Dalton and a post-Fiddler Topol, basking in the fame of the ubiquitous but unrelated smoker’s toothpaste, as well as the consummate thespian, Max von Sydow.  And of course, there is the famous Queen soundtrack.  Only Freddie Mercury could make “Flash, a-ah, savior of the universe” sound cool.

The plot is ridiculous: a football player and his girlfriend are lured into Dr.  Zarkov’s rocket ship and travel to the planet Mongo, where they overthrow the evil Ming the Merciless to save Earth.   In the climactic scene, Flash lures Ming into thinking that he has failed and disables Ming’s lightning shield defenses, allowing the Hawkmen to penetrate Mingo City, where they impale Ming on his own rocket.  (I suppose I should have included a spoiler alert.  Sorry.)

Flash.  Lure.  Penetrate defenses.  Hmmm.  That sounds familiar.  Hackers use Flash drives to lure unsuspecting users into giving them access to their systems, allowing the hacker to obtain confidential information or insert malware to disable system defenses.

Failing to take reasonable steps to avoid data security breaches can have serious consequences for lawyers and their clients.   It may even be an ethical violation — a number of states recently have issued bar opinions, or amended rules to make explicit, that lawyers have an ethical obligation to keep abreast of technological developments and take steps to avoid data breaches.

So if you are not up to date on the latest technological advances, or if you don’t know a computer worm from an earworm, it may be a good idea to brush up on your technology training.   And if you won’t listen to me, listen to Flash.  “Flash Gordon. Quarterback. New York Jets.”

 

 

Subpoenas

In the critically acclaimed Pineapple Express, Seth Rogan plays Dale Denton (no relation), a pot smoking process server who winds up on the run after witnessing a murder.  While perhaps not quite Citizen Kane, Pineapple Express certainly ranks with such greats as Harold & Kumar Go to White Castle as one of the leading films of, well, a certain genre.

In this scene, Dale cogently explains the intricacies of his job:

As challenged as they may be, even this pair understands that no one wants to be served with a subpoena.

Litigators regularly need to seek discovery from third parties.  And in a transactional context, lawyers may need to reach out to third parties, even informally, for documents or information.   Sometimes those third parties are also your clients on unrelated matters.

You’re not suing them, so they’re not adverse, right?  That maybe so, but try making that distinction to a client who now has to retain outside counsel to search for and collect massive amounts of ESI to respond to the subpoena it received from its own lawyers.  And what happens if the client decides they want to challenge the subpoena?   I think even Dale (not to mention Harold and Kumar) would get the adversity there.

For these reasons, before serving a subpoena, or even informally asking a third party to produce information, it’s a good idea to run a conflicts check.   This way, you’ll know whether the party you’re about to subpoena is one of your clients and you can take appropriate steps.  Hey, they may even accept process, and you can avoid hiring a process server.

A side benefit of that is that it frees up folks like Dale Denton to pursue other interests.  As one of Dale’s role models might say, that’s awesome.  Totally awesome.

Trojan Rabbits

Most of us associate DQ motions with conflicts.  That’s true, of course.  But a recent decision disqualifying a law firm from a pair of legal malpractice cases had nothing to do with conflicts.  Rather, the court disqualified the firm based on its misuse of an inadvertently produced privileged document.  Upon receiving an email containing legal advice from the opposing party’s attorney in the underlying proceeding, the attorneys failed to notify their opponents. Instead, according to the DQ motion, they retained the document, allowed their client to review it to prepare for a deposition, and used it to question opposing party deponents about the legal advice it contained. The court criticized the conduct as affecting not only the privilege holder’s rights, but also “the integrity of these judicial proceedings and public confidence in them.”

To avoid this unpleasant predicament, lawyers should be aware of their duties relating to inadvertently produced documents. While requirements can vary by jurisdiction, guidelines to keep in mind are:

* Notify. Rule 4.4(b) of the Model Rules of Professional Conduct requires an attorney receiving a document that appears to have been inadvertently sent to promptly notify the sender to permit that person to take protective measures.

* Plan Ahead. Rule 26(f)(3)(D) of the Federal Rules of Civil Procedure requires the parties to confer at the outset of the case about the handling of privileged documents, including whether to enter a stipulation or secure a court order governing inadvertently produced documents.

* Return, Sequester, or Destroy. Rule 26(b)(5)(B) of the Federal Rules of Civil Procedure, in turn, requires a party that has been notified it has received privileged material to “promptly return, sequester, or destroy the specified information and any copies it has,” to refrain from disclosing and using such information, and also to take reasonable steps to retrieve the information from any third parties to whom the receiving party disclosed it.

So when you seemingly receive a “gift” from your adversary, be careful.  It could have unintended negative consequences.  Then again, maybe not.

 

 

 

Holidays

July is a big month for holidays.  There is Independence Day, of course.  Many of our colleagues around the globe have their own celebrations too:  Canada Day, Bastille Day, Ivan Kupala Day.  And to capture the full polycentric nature of the month, July 11 is World Population Day.

And then there are the Hallmark holidays that July brings:  Friendship Day, Moon Day, Cow Appreciation Day.  There’s even a National Spinach Day followed, naturally, by National Ice Cream Day.   Personally, I’m looking forward to July 13:  Barbershop Music Appreciation Day.

All these holidays give us a great excuse to go on, well, holiday.  But as we look forward to hitting the beach, the lake, or whatever destination you choose, let’s remember that life goes on back at the office.  Clients, adversaries, and courts don’t necessarily share (or respect) our vacation schedules.

So before loading up the Family Truckster and heading out to Wally World, make sure you do the following:

*Check email and voicemail.  Unless your vacation spot is the North Pole or you otherwise have no connectivity, check your email and voicemail at least a couple of times a day.

*Have an appropriate out-of-office auto response.  If you will be completely offline or will be delayed in responding, make that clear.  You should also change your outgoing voicemail message.

* Make sure someone on your team is on point.  Whether it’s a client call or a motion that gets served,  ensure that someone with knowledge of the matter is poised to deal with any issue arises (and not just put things off til you return).

*Inform your clients.  While you need not give out your itinerary, clients will appreciate knowing in advance that you will be unavailable and knowing who to contact in your absence.  And if you tell them where you are going, they might even have good restaurant recommendations.

*Make sure someone is checking your regular mail for important correspondence.  Yes, some people still use mail.  Don’t let an unopened notice or letter with a seven-day deadline for responding sit on your desk unopened.

*Bring plenty of sunblock.

Once you’ve taken these steps, feel free to enjoy your Independence Day, National Chocolate Day, or Lollipop Day.  Or Green Day.

 

License to Drive, License to Practice

My son got his driver’s license the other day (not Bart Simpson, the older one).  While he waits for a brand new Mustang to magically appear in the driveway, he’s been studying New York’s laws about what he can and cannot do with a junior license:  no highway driving; no driving past 9 pm without an adult; no driving with two or more non-family member passengers.  And those are only the state rules; he’s had to familiarize himself with the parental laws as well:  no refusing to pick siblings up from their respective activities; no driving above 20 mph (ever); no changing the pre-set radio stations.   (Note:  no texting while driving is also very much a parental rule — as well as a Firm policy — but one about which I don’t joke.)

Lawyers likewise would be well-served spending some time reviewing the licensing requirements that govern their practices.  In this frequent flier economy, lawyers sometimes cross state borders without considering the implications of practicing in a jurisdiction in which they are not admitted.  And state bar regulators are taking note — an increasing number of lawyers are being disciplined for engaging in the practice of law without being licensed in the jurisdiction in which they practice.  Some states have set up special committees tasked with monitoring lawyers and law firms to ensure that lawyers who practice in their states are not improperly holding themselves out (explicitly or implicitly) as being admitted to practice.  Some even troll law firm websites looking for violators.

Nor is it a matter of just being licensed in the state in which you sit.  A California lawyer was recently disciplined after he was found to have violated the unauthorized practice rules of other states by implicitly holding himself out as being admitted to practice in those states, even though he never left California.

And what’s a really easy way to get snagged for UPL?  Failing to renew your registration.  That too can have some real world consequences, including suspension. 

So like my son (who’s still waiting for that Mustang), take some time to ensure that you are complying with your licensing requirements.  And while my son’s studying no doubt has paid off, like the cautious parents that we are, we asked some of our friendly local law enforcement officials to keep an eye out for him on his first solo drive.  We’re so proud.