Thursday, August 28, 2014

Delaware Court of Chancery Rejects Indemnification Sleight of Hand

In Branin v. Stein Roe Inv. Counsel, LLC, C.A. 8481-VCN, 2014 WL 2961084 (Del. Ch. June 30, 2014), the Delaware Court of Chancery held that a vested right to indemnification may not be rescinded by a subsequent amendment to the governing corporate document.

Francis S. Branin Jr. (“Branin”) owned and managed the investment management firm Brundage, Story & Rose, which was sold to Bessemer Trust, N.A. (“Bessemer”) in 2000. Nearly two years later, Branin left Bessemer and was hired by Stein Roe Investment Counsel LLC (“SRIC”), taking former clients with him.  Bessemer proceeded to sue Branin under New York’s Mohawk Doctrine, which refers to an implied covenant imposed on the seller of a business that prevents the seller from approaching former customers and attempting to regain their patronage after the seller has purported to transfer the sold business’ goodwill to the purchaser.  As a result of the legal claim by Bessemer, Branin sought indemnification under the directors and officers indemnification provisions of the operating agreement of SRIC (the “Operating Agreement”).

The Operating Agreement in effect when Branin was hired by SRIC provided that, “each member, manager or employee of [SRIC] shall be entitled to indemnification from [SRIC]for any loss, damage or claim by reason of any act or omission performed or omitted by such Person in good faith on behalf of [SRIC]” (the “Original Indemnification”).  Following the lawsuit by Bessemer, SRIC adopted an amendment to the Operating Agreement to exclude from the indemnification provision claims for damages incurred as a result of a “breach of any agreement, express or implied, entered into by such Person with one or more outside parties prior to such Person’s association with the [SRIC]” (the “Amended Indemnification”).  The issue before the Court hearing Branin’s claim against SRIC was which version of the Operating Agreement should govern.

Under Delaware law, limited liability companies have the ability to indemnify members and managers and have significant freedom to define, limit and amend these rights.  Therefore, the issue is not whether SRIC was within its rights to amend the Original Indemnification to exclude certain types of claims, but rather when Branin’s right to indemnification (pursuant to the Original Indemnification) became a vested interest.  The Court looked to the terms of the Original Indemnification, which covered a “claim” and determined that, without more, the right to indemnification would be triggered by the initial occurrence of a “claim.”  The Court concluded that Branin established the right to pursue a claim for indemnification under the Original Indemnification, agreeing with the examined case law that “generally protects indemnitees and looks to the operating agreement in place when the events giving rise to the claim accrued or when the lawsuit involving the claim was filed.” (emphasis added) See Branin at page 19.  The Court held that once a right to indemnification vests, it may not thereafter be rescinded by an amendment to the operating agreement. See Branin at page 18.

The Court, however, reinforced the concept that the terms of the agreement will govern and chose to not grant Branin’s motion for judgment on the pleadings, as there was a question of fact regarding whether Branin had satisfied all of the requirements of the Original Indemnification clause in the Operating Agreement.  In this case, the full text of the Original Indemnification included the requirements that a potential indemnitee have acted “in good faith on behalf of [SRIC] and, as applicable, in a manner reasonably believed to be within the scope of the authority conferred on [him] by this agreement.”  Therefore, Branin must still prove that he acted in good faith and within the scope of his authority in order to have a successful indemnification claim.

Although this case concerns a limited liability company and not a corporation, the concepts and reasoning behind the Court’s decision will likely be applied to claims under indemnification provisions of by-laws in the same way as it was applied to operating agreements here.  For this reason, it is important for all companies to note that while the specific restrictions and carve-outs of an indemnification provision will be applied to the facts of a claim, such indemnification provision may not be amended in order to avoid liability if the right to indemnification has already vested pursuant to the terms of such indemnification provision.

For questions or additional information, please contact Ariel Yehezkel (212-634-3064), Thomas Michael (212-634-3055) or your usual Sheppard Mullin contact.


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Location, Location, Location – No, Not Real Estate … Tweeting

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Everyone has heard the old saying about real estate – location, location, location. If you didn’t think that this applies to tweeting, you will now. As reported by The Arab Times:

The Misdemeanor Court sentenced a Twitter user to two months in prison with hard labor and temporary compensation for insulting a poet. Attorney Hussein Al-Asfour, lawyer for the plaintiff, pointed out in court that the accused tweeted statements deemed offensive to the poet; especially since the tweets were about the latter’s personal life. The accused posted the offensive tweets again after the plaintiff announced his plan to contest the parliamentary elections. During investigations, the defendant refuted the allegation that he tweeted the offensive statements; claiming another person used his account. However, when the complaint was referred to the Electronic Crimes Department, it was found out the accused owns the account and he posted the insulting statements repeatedly. Taking these circumstances into consideration, Al-Asfour asked the court to impose the harshest penalty on the accused.




Perry’s Lawyers Move to Dismiss Criminal Indictment

Lawyers for Gov. Rick Perry moved to dismiss the felony charges against him on Monday, contending that his prosecution for alleged abuse of power is unconstitutional.


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Officer Safety and Second Hand Smoke

Via John Wesley Hall at Fourth Amendment, a decision out of the 10th Circuit that puts an end to the pressing question of whether second hand smoke presents a sufficient justification to circumvent the 4th Amendment and enter a home without a warrant.  Lest you think this is too ridiculous to be worthy of consideration, bear in mind this is on appeal, the district court having denied suppression.

In United States v. Mongold, Special Agent Ashley Stephens (who apparently is male) of the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) was investigating Claudia Moore, whom she knew to be a felon from prior dealings, for drug dealing. After conducting observations, she, together with three other agents, went to Moore's apartment to conduct a "knock and talk," since she lacked probable cause to get a warrant.

Aside: For those unaware, a "knock and talk" is a means of circumventing the warrant requirement by relying on submission to the shield, lies, fear and the possibility that the agents might either see or cause something to happen to give rise to an exception to the warrant requirement that would allow them to enter a home. And yes, it's been held to be perfectly lawful since anyone, cop or Fuller Brush salesman, can knock on your door and say "hi." Or scream "police", as the case may be.
According to the testimony, Stephens heard "scurrying and shuffling" inside the apartment upon her knocking on the door, "which immediately caused us concern." A male voice asked who it was, and after he responded "police," there were "loud movements" and a "short delay" before Mongold opened the door. That's when the bad stuff happened.

After the delay, Mr. Mongold, who had been living in the home for several months, opened the door. Agent Stephens smelled marijuana and recognized what he believed were prison tattoos on Mr. Mongold. Agent Stephens asked for Ms. Moore. Mr. Mongold told him that he would go get her and turned to walk to the back of the house to find her. The officers followed him inside even though they did not have permission to enter the house.

Once inside, they saw ammunition. Knowing that Moore was a prior felon, possession of ammunition was a crime, and it went downhill from there. Mongold, Moore and her two adult children subsequently consented to a search of the place, which found drugs and guns. 

The defendant moved to suppress before the district court, based on the initial warrantless entry. The government's argument below was that the smell of marijuana, combined with the "prison tats" on Mongold's arm, suggesting that he too was a felon, created a justifiable fear of officer safety, which allowed for Stephens to enter for a protective sweep. The court below also held the entry justified under exigent circumstances to preserve evidence.

The Circuit wasn't as impressed.  While the court acknowledged that the smell of marijuana is accepted as a basis to believe there is pot inside, it merely gives rise to a belief that it's basic possession of marijuana.

Based on the foregoing, if marijuana possession is the only crime for which the officers in this case had probable cause, the exigency exception for destruction of evidence should not apply because marijuana possession is not a serious crime.

But that wasn't the only argument.  There remained their deep concern for the safety from the smell (yes, I'm being facetious calling it "second hand smoke," because it's unclear whether the smell is smoke or fresh pot, and the opinion really has nothing to do with the second-hand smoke aspect in any event).

At the suppression hearing, Agent Stephens argued that he feared for his and the other officers' safety because the home's owner, Ms. Moore, was a known felon, and he suspected Mr. Mongold was a felon as well, based on his "prison tattoos."

Officer safety is not an alternative ground to affirm because the first element of the test is dispositive. The Government presented no evidence that the officers had "reasonable grounds to believe that there [was] immediate need to protect their lives or others." Before entering the home, the officers had not seen a weapon or any other indication of heightened danger.

Even the use of cool active verbs ("scurrying"), curious descriptors ("loud movements") and expressions of deep concern reflecting both the terrible, life-and-death dangers of conducting a "knock and talk" to circumvent the Constitution, didn't sway the court.  Instead, the court reached the conclusion of remarkably wisdom:

They could most easily have protected the officers' safety by leaving Ms. Moore's home, not by entering it.

An idea so radical, so outlandish, that it never occurred to either the agents or the prosecutors: walk away. While this might make for good fodder to be chiseled into the lintels over courthouses everywhere, the bad news is that the opinion, while persuasive, is not precedential:

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value.

This, of course, means that the next time a second-hand smoke case arises, the district judge may not be willing to adopt such a radical concept as expecting the agents to walk away rather than conduct a warrantless search of a home after smelling marijuana or seeing prison tats, because they're very scary to agents.

And don't discount the possibility that if the odor was of burning pot, the agents would be authorized to break down the door to protect themselves from the second hand smoke. Truth is, this opinion doesn't preclude such a holding at all. It could still happen.





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How A Lawyer Can Control Their To-Do List With Task Managers and Technology

While preparing for a trial, gathering documents for a transaction, or simply running errands, most lawyers face each day with an overwhelming number of things to get done. From simply remembering them all to putting the list into proper priorities, every legal professional could use some help. How can technology play a role in bringing the list of to-dos under control? What are some questions lawyers should ask when choosing a to-do task management tool?
In this episode of the Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss taming the to-do list, their own approaches to using technology to help with task management, and questions every lawyer should ask when looking for a management tool to suit their needs.
Kennedy shapes his list management around David Allen's "Getting Things Done," a system which allows him to see his weekly calendar as a big picture and sort priorities to avoid being overwhelmed by the enormous list of projects.
Mighell says lawyers should watch for eight essential functions when looking for the right task manager:

Available on Multiple Platforms

Ease of Entry

Recurring Tasks

Multi-List Capable

Assign Priority Levels

GTD Functionality

Notes and Attachments

Ability to Share Task Lists

He recommends every lawyer weigh the importance of each of these before choosing a task management tool. Both @DennisKennedy and @TomMighell stress that this is a personal choice and ask the listeners for feedback on the to-do technologies they like best.
After the break, Kennedy and Mighell discuss the recent tech news story about Russian cybercriminals accumulating a hoard of more than a billion user passwords. They examine whether lawyers should be worried about this data breach, and what they should do to protect their online accounts. As always, stay tuned for Parting Shots, that one tip, website, or observation that you can use the second the podcast ends.
Special thanks to our sponsor, ServeNow.


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Wednesday, August 27, 2014

Goldman Sachs, Skadden, Arps Still on Kings of Inversion Deals

Neither Goldman Sachs Group Inc. nor Skadden, Arps, Slate, Meager, & Flom LLP landed a spot on the Burger King-Tim Hortons deal that may or may not have been a tax inversion, yet the investment bank and law firm remain kings of tax inversion advisory work.


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ABA committee backs pro bono requirement for students


 The nonprofit organization Equal Justice Works, which offers opportunities for attorneys to represent underserved clients, recently launched Law Students for Pro Bono. In fewer than two weeks, more than 600 students and lawyers had signed a petition asking the ABA to create an aspirational goal for law schools to promote students’ participation in 50 hours of pro bono service before they are admitted to the bar.  So the ABA Standing Committee for Pro Bono and Public Service signed on, and supported the 50-hour requirement to the Council of the Section of Legal Education and Admissions to the Bar.

 “The student response to the Law Students for Pro Bono campaign has been incredible,” said David Stern, executive director of Equal Justice Works, said in a press release.  “Students from across the country have come together to ensure that schools are imparting upon future lawyers the values that are core to the legal profession.”


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US government proposes changes to contraceptive mandate exemptions

[JURIST] The US Department of Health and Human Services (HHS) [official website] on Friday issued proposed rules to revise which for-profit businesses and non-profit organizations [proposed rules, PDF] are exempt from the contraception mandate of the Patient Protection and Affordable Care Act [text]. The changes come in response to the Supreme Court's rulings in Burwell v. Hobby Lobby and Conestoga Wood Specialties Corp. v. Burwell [SCOTUSblog backgrounders], which held that "closely held" corporations cannot be required to provide contraceptive coverage...


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Liaison Counsel Given Second Chance to Get Attorney Fees

Marion Mishkin, who served as liaison counsel for plaintiffs who suffered bodily injuries in the 9/11 response and cleanup, was denied attorney fees in 2013 for her work on the non-respiratory injury cases, a ruling the Second Circuit overturned yesterday, remanding the case for further discovery.


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Where does a golfer go to retire?

At some point, you will say, “What kind of life do I want to live?”  In a recent article in the Los Angeles Times (Thursday, August 14, 2014), a retired “workaholic” entrepreneur said “’You cannot not have a plan when you retire.’”

He turned to retirement; though he didn’t plan it that way, he traded his many hours of daily work for golf, playing each and every day for 365 days.  He said “One obsession prepared me for (another).”

The writer then continues, “All this makes me wonder: What do pro golfers do when they retire?”

Life After Law: What Will You Do With the Next 6,000 Days? seeks to address this issue.  One such option, before traveling into the “sunset,” is selling your law practice and monetizing the years of your efforts … capitalizing on the goodwill you’ve developed.  See our LawBiz® Registry for more help in this effort.


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McDonnell Takes The Stand, Founding Defense On Marital Dysfunction

In the corruption trial of Virginia Gov. Bob McDonnell and his wife, McDonnell took the stand as a witness. Jeff E. Schapiro, politics columnist for the Richmond Times-Dispatch, discusses the testimony with Robert Siegel.

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How Data Science is Speeding Up Lawsuits: Bennett Borden Interview at LegalTech

Laurence Colletti from the Legal Talk Network interviews e-discovery expert Bennett Borden about how electronic data collection and analysis is increasing the efficiency and accuracy of large scale litigation. This historically unparalleled ability "to get to an answer" is having a significant effect on the legal industry. Not only is it driving companies to faster settlements and empowering small plaintiffs' firms to take large cases but it is also impacting the billable hour model used by large firms. Borden is a partner and Co-chair of the information governance and e-discovery group at Drinker Biddle and Reath LLP.


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6 Key Numbers Every Attorney Should Know

Many lawyers are hesitant to regularly look at their finances. In addition to the regular workload and marketing, maintaining a budget seems overwhelming and is often undervalued in time management. After all, when managing a business, there are so many different factors that can affect cash flow and finances: personnel issues, economy changes, client payment plans, marketing and advertising, clerical errors, and many others. Although it may seem difficult to organize and prioritize the finances of a law firm, there are six key categories that break down the budget so that it can easily be managed.
In this episode of The Un-Billable Hour, host Christopher Anderson interviews financial analyst Brooke Lively about the six key numbers every attorney should know. Three are involved with the money that exists or has already been spent: cash position, budget, and accounts receivable. Lively emphasizes the importance of knowing how much the firm has, how much it is owed, and what is being spent. She recommends that an attorney then take these numbers and analyze them to provide cash projections, budget variance, and income variance. Any noticeable changes can lead to modifications to save the company unnecessary losses. By simply paying attention to these six numbers each month, the success of a lawyer's practice could greatly increase.
Brooke Lively currently serves as a CFO to over twenty small and solo law firms around the country through her organization, Cathedral Capital. She focuses on fundamental analysis, firm modeling, and valuation backed by strong quantitative skills. She holds an MBA with a double concentration in Investments and Corporate Finance and has been awarded the Chartered Financial Analyst certification.


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Tuesday, August 26, 2014

Like You Wouldn’t Do The Same Thing If You Were Upset Over Your Drink Order At McDonald’s!


It’s so easy, in the comfort of your own home, or sitting there in your ergonomic office chair, to say that you wouldn’t have reacted as this Houston woman did. But can you really know with certainty? Exactly. As reported by

According to officers with the Houston Police Department, the woman got upset over her drink at a McDonald’s restaurant, caused a disturbance, and then sped off [and allegedly led police on high-speed chase.]  Police said they spotted her older Mercedes with an expired sticker, and they tried to pull her over.

Okay, so perhaps she overreacted a little.

They eventually used spike strips to flatten her tires. She came to a stop on Hillcroft near Richmond.

Yikes. So what happened to her?

Police said the woman would be charged with resisting arrest. [She was taken to jail.]

Here’s the source, including a photo of the unhappy customer.


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Are you cheating yourself?

The business cycle consists of three elements:  marketing to get the new client and retain the old client; production to produce and deliver the legal service, advice and/or documents; and finance to collect your billings and operate your firm.  The first two tend to be the focus of most lawyers.  Billings and collections tend to be ignored or given short shrift or delegated to a staff member with less interest and skill.

One statistic shows that sole practitioners spend 40% of their time in non-billing tasks, such as marketing, billing, collections and other aspects of running the law practice.  In firms of 11 to 20 lawyers, the percent falls dramatically to 8%.  Hence, the larger firm earns more money.  They produce more effort; they bill more; and, even with poor collection efforts, they will likely collect more revenue than their solo counterparts.

Perhaps you should engage personnel to deal with some of the non-billing tasks, whether internally or outsourced and/or perhaps you should consider practice management software as your assistant.  Failure to attain the appropriate resources to enhance your production efforts and non-billing needs is cheating yourself.  Coaching will help you understand how to address these issues.


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Mark Woods: Seeing Jaguars' scoreboard in action turns hater into believer (Florida Times-Union)

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Bank of America reaches $16.65 billion settlement with DOJ

[JURIST] The US Department of Justice (DOJ) [official website] on Thursday announced a $16.65 billion settlement [press release] with Bank of America (BOA) [corporate website] to settle claims that it sold precarious mortgage-backed securities to investors. Of the $16.65 billion, $9.65 billion will be split among federal and state entities while the remaining $7 billion will be paid to consumers harmed by BOA and Countrywide Financial's contribution to the 2008 financial crisis. Attorney General Eric Holder [official profile] said that...


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Can Technology Fuel Small Firms: J. Craig Williams Interview At LegalTech West Coast

During the 2014 LegalTech West Coast trade show, Legal Talk Network producer Laurence Colletti interviews Lawyer 2 Lawyer host J. Craig Williams who specializes in civil litigation, white collar criminal matters, as well as admiralty and tax issues. Together they discuss how small law firms use technologies to even the playing field with large law firms. Williams explains that technology is pervasive in how lawyers give trial presentations, communicate with clients, market their services, and even manage a practice. Small and medium sized firms can adapt more quickly to new technologies making up for their lack of big-firm resources. Tune in for 3 tools every lawyer should be using and 3 ways to make a practice more nimble.


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Pharma sales reps are FLSA exempt as outside salesmen (5-4)

This morning the US Supreme Court decided - on a 5-4 vote - that pharmaceutical sales representatives are "outside salesmen" and therefore exempt from overtime under the Fair Labor Standards Act. The Court also unanimously held that the Department of Labor's recently-announced contrary interpretation was entitled to exactly zero deference.

Christopher v. SmithKline Beacham (US Supreme Ct 06/18/2012)

Christopher, a pharmaceutical sales representative, sued the employer for violation of the Fair Labor Standards Act (FLSA) alleging failure to pay overtime. The trial court granted the employer's motion for summary judgment and denied Christopher's motion to amend the judgment based on the trial court's failure to consider an amicus brief filed by the Secretary of the Department of Labor (DOL). The 9th Circuit affirmed. The US Supreme Court affirmed (5-4).

The job of a pharmaceutical sales representative is to try to persuade physicians to write prescriptions for products in appropriate cases. For over 70 years DOL acquiesced in an interpretation that they were "outside salesmen" who are exempt from FLSA overtime requirements. In amicus briefs filed in Circuit courts DOL took the position that a "sale" requires a "consummated transaction." In Supreme Court briefing DOL's position was that there is no "sale" unless the employee "actually transfers title."

The Court said that the DOL's new interpretation is entitled to no deference at all because it would impose massive liability for conduct that occurred before the interpretation was announced, there had been no enforcement actions suggesting the industry was acting unlawfully, DOL gave no opportunity for public comment, and the interpretation is "flatly inconsistent" with the FLSA.

The FLSA definition of "sale" includes consignments, which do not involve a transfer of title. Although DOL regulations say that sales include the transfer of title, that does not mean a sale must include a transfer of title. The regulations also use the phrase "other disposition" which - in this unique regulatory environment - includes the work of pharmaceutical sales representatives. The representatives also bear all the exterior indicia of salesmen (average salaries exceeding $70,000, work that is difficult to standardize to a particular time frame, etc.)

The DISSENT reasoned that sales of drugs are made by pharmacists, not pharmaceutical sales representatives. The pharmaceutical sales representative neither make sales nor promote "their own sales." (The dissent agreed that the DOL's current views expressed in briefs are not entitled to any weight.)

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Mark Woods: In the State of Florida vs. Michael David Dunn there are no winners (Florida Times-Union)

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Evernote and the Organized Lawyer

Many people, including lawyers, are using an organizational tool called Evernote and are singing its praises. They are enthusiastic about its capacity to capture all types of information in many formats, to organize information into useful notebooks, and to enable access to that information across multiple platforms. In a time when almost everything is done online, Evernote is a user-friendly web service that can help lawyers stay organized, freeing up time for marketing and taking on new clients.
In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell talk about their own use of Evernote and how Evernote might work well for you in a legal practice. They examine photo recognition, scanning business cards and connecting to LinkedIn, collecting and organizing information for case research, and many more ways in which Evernote can make an attorney's life more efficient. They also discuss downsides to using the tool; there are ethical dilemmas that incur when retaining sensitive client information in a cloud-based tool.
Kennedy and Mighell also briefly reflect on how printing physical copies has changed and how lawyers will think of hard copies in the future. Stay tuned for Parting Shots, that one tip, website, or observation that you can use the second this podcast ends.
Special thanks to our sponsor, ServeNow.


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Monday, August 25, 2014

What You Should Consider When Starting A Solo Law Practice

When starting a solo or small practice, a lawyer has to consider many new business details that were unnecessary while working for a larger firm. How do taxes differ for sole proprietorships versus other entity types? What are the necessary business or trust accounts for each individual lawyer? What is the most important thing to consider when paying taxes and acquiring insurance? Any lawyer who is starting a solo practice, confused by the options and information available, can make costly mistakes.
In this episode of New Solo, Adriana Linares interviews Reba Nance and Bill Gibson, two experts in the field of law practice management, about what steps lawyers can take in the beginning of their solo practice to optimize their chance of success. Nance recommends several bank accounts with clear paper trails that are reconciled regularly, acquiring malpractice insurance even if the state does not require it, and not taking shortcuts when pressured by clients. Gibson encourages lawyers who have newly gone solo to seek help and talk to a CPA, pay taxes and automate their payroll systems, and not overlook general liability and workers comp insurance. Both practice management experts highly advise any lawyer to carefully read the professional conduct rules and ethical regulations of each state. Starting a new practice is difficult; no lawyer should be afraid to ask for help.
Reba Nance is a law practice and risk management manager of the Colorado Bar Association. In addition to being a frequent presenter on topics such as legal technology and malpractice prevention, she is the first female chair of the ABA tech show.
Bill Gibson has practiced personal injury litigation in Portland, OR since 1979. Working as a full-time neutral since 2000, he has also written several books on law practice management including one of the latest ABA books called Flying Solo.
Special thanks to our sponsor, Solo Practice University.


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No Venue Change for Subcontractor’s Fraud Claim 

In this suit by a subcontractor hired by defendant demolition company to remove epoxy coating from a concrete floor at Camp Peary, Va., the Norfolk Circuit Court says venue is permissible in Norfolk as to plaintiff’s fraud claim and defendant’s objection to venue is overruled. Plaintiff Specialty Products Inc. (SPI) allegedly bid on the epoxy ...


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MFormation Won't See Dime of $147 Million Jury Award

A Federal Circuit panel led by Chief Judge Sharon Prost said the district judge was right to wipe out a verdict against Research in Motion.


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LawBiz® Legal Pad: No, It’s Not the Same: Pricing vs. Billing, Part 2

Ed advises: keep track of your work, bill timely, and collect efficiently.


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China executes 8 for separatist violence and related crimes

[JURIST] Chinese officials in the western region of Xinjiang [official website, in Chinese] executed eight individuals charged with terrorism- and separatism-related crimes on Saturday. According to a press release by China's state-run news agency, the execution was conducted with approval [Xinhua report] by the Supreme People's Court [official website, in Chinese]. Three of the executed individuals were sentenced during a mass trial [JURIST report] in May, in which 55 people were sentenced for terrorism-related charges before a crowd of more...


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Dentist Auctions Off 12-Year-old Unpaid Judgment Against Kim Kardashian

In October 2002, Los Angeles dentist Dr. Craig D. Gordon won a $1,605.73 default judgment against a 22-year-old patient named Kim Kardashian. Nearly a dozen years later, the dentist has finally gotten his money back with interest and more through an online auction.


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Like You Wouldn’t Do The Same Thing If You Were Upset Over Your Drink Order At McDonald’s!


It’s so easy, in the comfort of your own home, or sitting there in your ergonomic office chair, to say that you wouldn’t have reacted as this Houston woman did. But can you really know with certainty? Exactly. As reported by

According to officers with the Houston Police Department, the woman got upset over her drink at a McDonald’s restaurant, caused a disturbance, and then sped off [and allegedly led police on high-speed chase.]  Police said they spotted her older Mercedes with an expired sticker, and they tried to pull her over.

Okay, so perhaps she overreacted a little.

They eventually used spike strips to flatten her tires. She came to a stop on Hillcroft near Richmond.

Yikes. So what happened to her?

Police said the woman would be charged with resisting arrest. [She was taken to jail.]

Here’s the source, including a photo of the unhappy customer.


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Offsets and Overlaps in Workers’ Compensation and Social Security Disability Claims

When an employee has a debilitating accident at work, there are insurance and government benefits available to the employee and his or her family. Among the many benefits included are workers' compensation, Social Security Disability Insurance, Supplemental Security Income, and Medicare coverage. Despite the different sources and governing bodies, many of these federal, state, and municipal programs are interrelated with offsets and qualifying terms. Since the benefits and qualifications can differ from case-to-case and state-to-state, it can be difficult to figure out the bottom line without a lawyer.
In this episode of Workers Comp Matters, Alan Pierce interviews William Troupe, an expert attorney in the field of workers' compensation and Social Security Disability. They discuss Social Security Disability and the interrelationship with workers' compensation, and the varying laws concerning offsets of different benefits. They also discuss the formula of benefits received relative to Average Current Earnings (ACE) and auxiliary beneficiaries such as spouses and children. While this is all information that an employee should know, it is necessary to seek out an expert lawyer in any disability case that prevents someone from returning to work.
William Troupe is an attorney and owner of Troupe Law Office in Peabody, MA. He has 40 years experience in representing injured workers and their families both in workers' compensation and Social Security Disability cases. He is intricately involved with various bar associations and frequently lectures at continuing legal education programs. Troupe was recently inducted in the College of Workers' Compensation Lawyers.
Special thanks to our sponsor, PInow.


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Sunday, August 24, 2014

Why It’s Important for Lawyers to Build Expertise and Stand Out From A Crowd

In this increasingly saturated market, being a successful lawyer means standing out from the crowd and becoming the expert in a specific field. Due to economic pressures, it is now necessary for a lawyer to develop a powerful brand in order to make a good living. This means going above and beyond being a hard worker and a self-aware lawyer. Additional research in the field, networking, and self-promotion to garner awareness are all necessary actions required to thrive in the legal community.
In this episode of The Legal Toolkit, Jared Correia interviews internationally established marketing strategy consultant, Dorie Clark, about why it is important for lawyers to become subject matter experts, how they might realistically do so, and what the benefits of success are. Clark explains how many lawyers don't try to become experts because they don't believe it is possible, others think that expertise and success should fall into their laps due to hard work, and a third group think that it requires a genius level of intelligence. They should instead be expanding an expert niche, doing original research, combining ideas and fields, or creating a definitive guide to a system. Although expertise requires additional work, the benefits include a more trusting relationship with clients resulting in increased efficiency and results.
Dorie Clark is the CEO at Clark Strategic Communications and is a frequent contributor to Forbes, Harvard Business Review, and Entrepreneur. She has guest lectured at Harvard Business School, the Harvard Kennedy School, Stanford University's Graduate School of Business, the Wharton School and the MIT Sloan School of Management. Her new book, Stand Out: How To Find Your Breakthrough Idea and Build a Following Around It, further delves into the topics discussed in this podcast.


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What Monkey Selfies, Elephant Art, Catchphrases and DNA Have in Common

The U.S. Copyright Office this week unveiled a draft of its latest administrative manual, a 1,222-page guide for agency staff, applicants, courts, lawyers and scholars or anybody who has a question about copyright procedures and practices but was too afraid to ask.


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A Day in the Life of an E-discovery Case Manager

E-discovery is an intricate and complicated process where law and technology intersect to find solutions to complex litigation challenges. Lawyers and legal professionals going through the e-discovery process are often overwhelmed with data and information in varying systems in different stages of technological advancement. From millions of documents to tight production deadlines, no one understands the realities of the e-discovery frenzy better than an e-discovery case manager.
On this episode of The ESI Report, Michele Lange interviews Joe Edlund and Matt Samet, two e-discovery case managers from Kroll Ontrack. Edlund explains that it is the job of a case manager to establish a working relationship with the lawyer, including training on the data software, explaining data sets and performance, helping to make deadlines, and generally decreasing stress. Samet describes some of the benefits to the legal professional of having an e-discovery case manager. They are able to see the client from beginning to end and organize data recovery systems, identify response documents, and be proactive about potential issues. Through an open and communicative relationship with engineers and project level support, case managers are able to make the hectic process of e-discovery easier and more manageable. Stick around to the end for a fun quiz about job descriptions.
Joe Edlund is a Kroll Ontrack case manager who partners with law firms and corporate clients to provide sound advice and best practices in connection with e-discovery management. Matt Samet has experience as a case manager and is also a portfolio manager at Kroll Ontrack, also providing clients with e-discovery solutions.
Special thanks to our sponsor Kroll Ontrack.


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Spotlight on the Houston Bar Association

Established in 1870, the Houston Bar Association's purpose was to maintain high standards in the legal profession and provide legal education for Harris County attorneys. Today, the HBA is the fifth largest metropolitan bar association in the nation and has expanded its goals to include public service and better access to legal services for all citizens in the Greater Houston area. Ringler Radio host Larry Cohen talks with colleague, Robert P. Caples and guest, Attorney David Chaumette, President of the Houston Bar Association, to discuss the HBA's initiatives for 2014, public service and giving back and a fantastic community project program called The Veterans Legal Initiative.


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No district court jurisdiction for federal employee challenging adverse employment action (6-3)

The US Supreme Court held this morning that the Civil Service Reform Act (CSRA) precludes district court jurisdiction over Elgin's claim that his removal from federal service was based on an unconstitutional statute. The procedural route prescribed by the CSRA is by appeal to the Merit Systems Protection Board (MSPB) and, if dissatisfied with the result, appeal to the Federal Circuit, whose decisions in turn are reviewable by the Supreme Court.

Elgin v. Dept of Treasury (US Supreme Ct 06/11/2012)

A federal statute bars employment in the executive branch of male citizens who failed to register for the draft. Elgin, who had been discharged from his job, first challenged the decision before the MSPB - arguing that the statutory bar was unconstitutional - but an ALJ dismissed his case on the ground that the MSPB lacked authority to review the constitutionality of a federal statute. Rather than appealing from that decision, Elgin sued in federal district court.

The US Supreme Court held that the district court lacked jurisdiction because it is "fairly discernable" from the CSRA's text, structure, and purpose that Congress precluded district court jurisdiction over Elgin's claims. Based on CSRA's text and structure, there is no exception for constitutional challenges to federal statutes. If the MSPB lacks power to hear such claims, they can be meaningfully addressed by the Federal Circuit.

The DISSENT argued that Elgin's "constitutional claims are a far cry from the type of claim that Congress intended to channel through the [MSPB]."

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Justice Ginsburg Skeptical of Two-Year Law School Idea

The high court was “once a leader in the world” in rooting out racial discrimination,” the justice said in a wide-ranging interview. “What’s amazing is how things have changed.”


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Data Breaches, eDiscovery, and the Importance of Digital Forensics

Every law firm can run into incidents of employee misconduct, data breaches, and intellectual property theft. In the age of modern technology, data breaches, insider trading, and other security problems require extensive technological forensics. Partners and firm owners, as well as lawyers working within the firm, need to understand why a digital investigation is needed, what steps should be taken within an investigation, and who should be involved. Having this knowledge can save the firm thousands of dollars while uncovering the truth.
In this episode of Digital Detectives, Sharon Nelson and John Simek interview ediscovery and compliance attorney Patrick Oot about how attorneys should be prepared on technology issues when they start to investigate criminal and civil matters. Everyone leaves technology footprints, Oot explains. Whether dealing with an internal investigation or with client data, the most important asset is unbiased, comprehensive, and well documented research. When hiring a digital investigator, the firm should always find an outside expert who is experienced with data breaches, understands how data moves through the system, and can manage proper narrative to the regulators. Properly conducting a digital investigation can make the difference in the credibility and success of a law firm.
Patrick Oot is a partner in the DC office of Shook Harty and Bacon LLC where he leads the practice on e compliance and digital investigations. He is one of the few ediscovery and compliance attorneys in the nation that possesses the tripartite experience of an in-house corporate counsel from a fortune 16 organization, a senior attorney at a federal regulatory agency, and a partner in a large law firm. Patrick has extensive experience advising on discovery and investigative matters involving commercial litigation, compliance, regulatory requests, antitrust matters, and personnel issues.
Special thanks to our sponsor, Digital WarRoom.


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This Week on Legal Talk Network (7/21/14)

Hello. This is Laurence Colletti for This Week on Legal Talk Network. On Monday, New Solo host Adriana Linares interviews practice management experts Reba Nance and Bill Gibson about business steps new lawyers need to take to optimize their chances for success. Here's a preview- On Wednesday, Christopher Anderson from the Un-Billable hour interviews expert analyst Brooke Lively about the 6 key financial numbers that every lawyer should know. And on Friday, we finish the week with Lawyer 2 Lawyer - our host J Craig Williams interviewing Tennessee House Representative Mike Carter and Legal Director Thomas H. Castelli from the ACLU, discussing Tennessee's new law that adds criminal liability to mothers who do illegal drugs while pregnant. So tune in. It's all right here . . . This Week on Legal Talk Network.


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Saturday, August 23, 2014

You Fell For The Old “Diversion-Style” Burglary?


As criminal schemes go, this actually isn’t a bad one. So no slamming the victim today. As reported by per

According to Montclair Detective Lt. David O’Dowd, the “diversion-style” burglary hit a Fairview Place home at about 2 p.m. on August 8 when a man wearing beige work clothes and carrying a portable radio rang the doorbell.

It begins …

The man told the homeowner he was working on a water issue in the area, and she let him in to test some of her faucets, police said. After running the water, he led the woman outside to a garden hose, where the two stood for about 30 minutes, police said.

When a voice through the radio said “we’re good to go,” the man left through the yard, police said. When the woman went back inside, police said she found the house ransacked, and $1,000 in cash stolen.

Good to go! And what about the perps?

Police described the suspect who distracted the woman as a 5-feet-10-inch tall white man with brown hair in his 30s. Anyone with information is asked to call Detective L. McCarthy at 973-509-4725.

You’ll find the source here.


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Ruling Limits Krishna Movement?s Fundraising at Airport

A federal appeals court has rejected the Hare Krishna movement?s latest constitutional battle to solicit money at a major international airport.


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LawBiz® Legal Pad: No, It’s Not the Same: Pricing vs. Billing, Part 2

Ed advises: keep track of your work, bill timely, and collect efficiently.


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NYC Public Advocate Unveils Plan to Outfit Cops with Body-Mounted Cameras

Public Advocate Letitia James detailed a proposed $5 million pilot program Thursday that would outfit dozens of New York Police Department officers in high-crime precincts with body-mounted cameras.


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The Future of Legal Technology: Rohit Talwar Interview at LegalTech West Coast

Legal Talk Network producer Laurence Colletti interviews Rohit Talwar, CEO of Fast Future, about the conclusions of ILTA's Legal Technology Future Horizons Research Project. This project focuses on how advances in technology will impact the legal sector in the near future. As technology has now become an integral part of legal services, customer interface, and internal processes, Talwar explains, a focus on IT will be essential in order to compete in the global market. Within Fast Future, Talwar acts as a futuristic strategic advisor to many companies, governments, and organizations around the world.



Tools and Techniques for Personal Knowledge Management and Curation

Do you often do fresh searches on the same topics even though you've previously found good information? "Curation" is the word used to describe the process of collecting, organizing, and using good information you've found when you need it. Some people also think of this approach as personal knowledge management. This means having an archive of reasonably up-to-date and interesting information from various sources that can be accessed and used for a legal article, podcast, blog post, or social media presence. Knowledge management is a form of information organization that has caught on widely in larger law firms, but has not had as much traction with lawyers in smaller practices or solos. These small-practice lawyers can use tools like Evernote to create a platform for their own personal knowledge management.
In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss curation and personal knowledge management including tools and techniques, ways to improve success, common difficulties, and their own personal experiences. They describe the three important aspects involved in sustaining a successful knowledge management system: collecting the information in one place, organizing it for later access, and using the collected information for legal clients or marketing when it might apply. While Kennedy and Mighell prefer Evernote as an organizational tool, there are many other options including Excel Spreadsheets, bookmarks, Instapaper, Pocket, Readability, or using PDF files. Their suggestions for curation and long-term knowledge management involve finding the right tool, designing systems around personal habits, and mentally focusing on long-term success.
In the second part of the podcast, Kennedy and Mighell review the announcements made at the 2014 Google I/O conference including smart watches, Android TV, a "kill switch" for smartphones and many others. They also comment on a couple of hot topic items that were avoided in the conference's keynote speech. As always, stay tuned for Parting Shots, that one tip, website, or observation that you can use the second the podcast ends.
Special thanks to our sponsor, ServeNow.


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This Week on Legal Talk Network (7/14/14)

Hello. This is Laurence Colletti for This Week on Legal Talk Network. On Monday, Sharon Nelson and Jim Calloway from the Digital Edge talk to expert Tom Spahn about the ethics involved when a law firm breaks up or a lawyer wants to leave. Here's a preview- On Wednesday, The Legal Toolkit's Jared Correa continues our Special Report series from the MASS LOMAP 4th Annual Super-Marketing Conference and interviews Joyce Brafford from NCBA on how to manage social media to improve client relationships. Thursday, Heidi Alexander returns to the conference to speak to Kelli Proia from Lawducate about the how to run and market your law firm like a regular business. And on Friday, we finish the week with The Kennedy-Mighell Report - our hosts Dennis Kennedy and Tom Mighell discussing the new 3rd edition of Tom's book "iPad in One Hour for Lawyers" - what's happening with the iPad now and what to expect in the future. So tune in. It's all right here . . . This Week on Legal Talk Network.


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Punishment for former Tax Court Judge George Perez stands

The Minnesota Supreme Court agreed with the Board on Judicial Standards. Former Tax Court Judge George Perez should be censured and his case should be forwarded to the Wisconsin Office of Lawyer Registration.

The Supreme Court also said it would supervise any future application Perez submits to the Minnesota Bar.

In November 2012, the BJS filed a disciplinary petition against Perez alleging that he failed to issue his opinions in a timely manner, falsified court records to show he had no cases pending, refused to accept new cases and demonstrated a “pattern of delay” in issuing decisions

Chief Justice Lorie Gildea appointed a three member panel to hear the case. That body ruled the BJS proved two of the claims by “clear and convincing evidence”, but did not prove two others.

Among other findings, the panel concluded Perez made “a substantial number of false certifications over an extended period of time.”

For punishment, the panel recommended a nine month suspension, a prohibition on serving out the rest of the term and for Perez to submit monthly status reports on his pending cases. The BJS pushed to have Perez removed from office, effectively ending his judicial career.

None of that mattered however because Perez was up for reappointment. In the waning days Gov. Mark Dayton recommended he not be confirmed. The Minnesota Senate vote was unanimous and Perez’s tenure as a Tax Court judge ended.

But Perez appealed the panel’s decision arguing it was moot because he was no longer a Tax Court Judge and secondly, he argued the BJS did not prove its case. He also claims the damage has been done. He also argues that any discipline should be mitigated because since January 2012, the time when he engaged with the BJS’ investigation, all of his decisions were decided within the three month deadline.

“Judge Perez argues we should not discipline him. He contends his removal from office… and the news media coverage of the panel’s findings constitute sufficient discipline for his misconduct.”

The Supreme Court disagreed with Perez and affirmed the discipline handed down by the panel. Doing so, “protects the integrity of the judicial system and should help restore the public’s confidence.”

Justice David Lillehaug took no part in the decision.




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Friday, August 22, 2014

60 Years After Brown v. Board of Education, Equal Educational Access Remains Elusive

May 17th, 2014 marked the 60th Anniversary of Brown v. Board of Education, the landmark Supreme Court Decision that held state laws establishing separate public schools for black and white students as unconstitutional because they violate the Equal Protection Clause of the 14th Amendment. Today, some six decades later, many parents and teachers are still worried that America's children are not receiving equal access to education envisioned in that case. On this episode of Lawyer 2 Lawyer, hosts Bob Ambrogi and J. Craig Williams shed light on this issue with guests Christian D'Andrea from the MacIver Institute and Kyle Serrette from The Center for Popular Democracy. Together they discuss private schools, charter schools, and homeschooling vs. the community school model. Tune in to learn more about funding concerns, oversight issues, and the proper role of teachers unions in the school choice debate.
Christian D'Andrea is an Education Policy Analyst with the John K. MacIver Institute for Public Policy in Madison, WI. He earned his Master's of Public Policy degree at Vanderbilt University and has previously worked for the Friedman Foundation for Educational Choice as a State Policy Director and Policy Analyst. He is the author of several studies that examine the fiscal and personal impacts of educational reform, and his work has been featured everywhere from the Huffington Post to EducationNext.
Kyle Serrette is the Director of Education Justice Campaigns at The Center for Popular Democracy and works with their partner organizations to strengthen their public education coalitions, develop strategy to help close the opportunity gaps, and coordinates national and regional campaigns that work to bolster our public education system. Prior to joining The Center for Popular Democracy, Kyle spent over 10 years working on corporate campaigns with groups such as Service Employees International Union, Change to Win, and the American Federation of State, County and Municipal Employees. He was awarded the 2010 Joe Hill Organizing Achievement Award by the LA Fed and the Los Angeles Orange County Organize Committee.
Special thanks to our sponsor, Clio.


immigration law

Justice Ginsburg Skeptical of Two-Year Law School Idea

The high court was “once a leader in the world” in rooting out racial discrimination,” the justice said in a wide-ranging interview. “What’s amazing is how things have changed.”


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Lawyers and Depression

Depression within the legal community is a very real issue. According to the American Psychiatric Association, lawyers as a group are 3.6 times more likely to suffer from depression than the average person. On Ringler Radio, host Larry Cohen welcomes colleague Cindy Chanley, and special guest, Professor Brian Clarke, Assistant Professor at the Charlotte School of Law. Brian shares his own personal struggle with depression, talks about recognizing the signs of depression, getting help, and how the legal community is coming together to help their own.


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Federal Judge Rules Against Anna Nicole Smith in Inheritance War

A years-long attempt by the estate of deceased Playboy model Anna Nicole Smith to collect millions of dollars from her late husband's family came to a close this week, at least in federal court.


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