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n Reuben Camper Cahn, partner at Keller/Anderle LLP, a nationally recognized bet-the-company business litigation firm based in Irvine, has been selected as a Fellow of the elite Litigation Counsel of America. The Litigation Counsel of America is an invitation-only trial lawyer honorary society composed of less than one-half of one percent (<0.5%) of American lawyers. Fellows are selected and invited into Fellowship after being evaluated for effectiveness and accomplishment in litigation and trial work, along with ethical reputation.

Reuben Camper Cahn has tried over 100 cases to jury verdict and has argued twice before the Supreme Court (in 2011 and 2018) in addition to numerous arguments before both the 9th and 11th Circuits. This combination of skill and experience at the highest levels establish Mr. Cahn as one of the most exceptional lawyers of his generation.

Mr. Cahn has defended a wide range of matters, involving tax, public corruption, fraud, money laundering, RICO, Continuing Criminal Enterprise charges and virtually every other type of white collar case. REUBEN CAMPER CAHN

n Judicate West, one of California’s leading providers of private dispute resolution services, welcomes Richard Huver to its roster of neutrals. Huver will be based in the San Diego office and is available for mediations statewide.

“Richard is a tremendous addition to our roster. I have known him for 16 years, and he is truly first class,” said Mark Kaufman, Judicate West’s Executive Vice President. “With 30 plus years of experience, as both an attorney and a neutral, he brings a wealth of knowledge and experience that will benefit our clients. As a mediator, he’s built a reputation on being very well-prepared, and he is an extremely skilled negotiator with a closer’s mentality.”

A mediator since 2016, Huver draws upon more than three decades of legal experience, litigating all types of matters relating to business disputes, insurance bad faith, personal injury, wrongful death, elder abuse, wrongful termination and professional liability. RICHARD HUVER

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n Brown & Charbonneau, LLP is pleased to welcome new associate attorney Joseph M. Dankert. Prior to joining Brown & Charbonneau, LLP, Dankert was an attorney at a multi-state litigation firm, where he defended large auto-manufacturers in cases litigated under California’s consumer protection statutes, unfair competition law, and fraud.

Dankert has been a member of the California State Bar since 2017. Since graduating Magna Cum Laude from the University Of Missouri Kansas City School Of Law in 2017, Dankert has represented clients in a wide range of practice areas including family law, personal injury, breach of contract, and consumer protection. He is known for his tireless work ethic, meticulous attention to detail, and emphasis on providing premium client service. JOSEPH M. DANKERT

n Berger Kahn’s 50-year anniversary celebrates a law firm with a uniquely positive spirit, practicing in the areas of insurance coverage and litigation, business litigation, labor and employment, serious personal injury and wrongful death, and subrogation.

“We are 50 years young and counting,” says Managing Partner Craig Simon, who has worked at Berger Kahn his entire professional career, having begun as a law clerk prior to completion of law school and staying with the firm for many decades.

Berger Kahn will celebrate its 50-year anniversary in January 2020, with esteemed accomplishments including: • Named a “Best Law Firm” four consecutive years by Best Lawyers. • Multiple shareholders named to the Best Lawyers list, an honor celebrated by only 3% of the Bar. • All shareholders, Craig Simon, Sherman Spitz, Teresa Ponder, Stephan Cohn, and David Ezra, recognized to Super Lawyers “Top Lists.” • Roberta Winston named Defense Attorney of the Year. • Erin Mindoro Ezra recognized to Super Lawyers Rising Stars “Up-and-Coming” lists. • Craig Simon, Sherman Spitz and David Ezra designated Lifetime Achievement members to the “America’s Top 100 Attorneys” list, given to only the top 1% of attorneys.

n Higgs Fletcher & Mack is proud to welcome its newest Partner, veteran litigator Timothy Noon, effective January 2. The firm has also recently welcomed attorneys Harrison Beau Bryant, Haley Dumas, Meredith King, and Miles Roeder, strengthening its immigration, business litigation, employment law and bankruptcy practice areas. The firm has hired attorney Ross Viselman as its new Risk Manager.

Noon is an experienced trial lawyer with a significant civil litigation practice focused on legal and accountancy professional liability, architect, engineer, construction and business and commercial litigation. He has defended a diverse client base including regional and national corporations, owners, law firms, architects, engineers, developers, contractors, subcontractors, and private individuals.

In addition to Noon, the Firm has hired Harrison Beau Bryant (Beau), who previously practiced alongside Noon. Bryant is also a trial attorney whose practice focuses on business and commercial, securities, Professional Liability, Financial Services and Employment litigation.

Haley Dumas, who also recently joined the Firm, is a part of the Employment Law and Business Litigation practice groups. Her experience includes representing clients in insurance coverage actions in both state and federal court.

Meredith King is a commercial litigation and bankruptcy attorney. Her experience includes representing individual business owners, corporate clients, and fiduciaries in complex financial litigation in federal, state, and bankruptcy courts.

Immigration attorney Miles Roeder garnered significant experience by practicing at both boutique and large international law firms over the last fifteen years.

Ross Viselman will serve as Higgs Fletcher & Mack’s Risk Manager. He most recently served as a Senior Trial Counsel with the State Bar of California, where he prosecuted and sought discipline against attorneys for ethical violations. TIMOTHY NOON HARRISON BEAU BRYANT HALEY DUMAS MEREDITH KING MILES ROEDER ROSS VISELMAN

n The American Institute of Family Law Attorneys has recognized the exceptional performance of California’s Family Law Firm, Hills Law Group as 2019 10 Best Family Law Firm for Client Satisfaction.

The American Institute of Family Law Attorneys is a third-party attorney rating organization that publishes an annual list of the Top 10 Family Law Attorneys in each state. Attorneys who are selected to the “10 Best” list must pass AIOFLA’s rigorous selection process, which is based on client and/or peer nominations, thorough research and AIOFLA’s independent evaluation. AIOFLA’s annual list was created to be used as a resource for clients during the attorney selection process.

One of the most significant aspects of the selection process involves attorneys’ relationships and reputation among his or her clients. As clients should be an attorney’s top priority, AIOFLA places the utmost emphasis on selecting lawyers who have achieved significant success in the field of Family Law without sacrificing the service and support they provide. MAXWELL A. HILLS

n Pettit Kohn Ingrassia Lutz & Dolin PC, a leading civil litigation law firm, is pleased to announce that Shannon R. Finley and Janice Y. Walshok have been promoted to shareholders. Both Shannon and Janice continue the tradition of premier client service and legal professionalism that are hallmarks of Pettit Kohn.

Shannon R. Finley is a shareholder in the firm’s San Diego, California office and joined Pettit Kohn in 2014. She is a leader in the Employment Law group and represents both large and small corporate employers in the defense of claims involving allegations of workplace discrimination, harassment, retaliation, and wrongful termination, as well as in large-scale wage and hour class action litigation violations.

Janice Y. Walshok is a shareholder in the firm’s San Diego, California office and joined Pettit Kohn in 2017. She is a leader in the Retail and Transportation group and represents large and small corporate clients in the defense of claims involving wrongful death, serious injury, and product liability. SHANNON R. FINLEY JANICE Y. WALSHOK

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Finding Success One “Right Thing” at a Time

Doing the right thing—whether at the office, in the courtroom, and especially at home—builds credibility. “Credibility is essential in advocacy. A reputation for integrity takes a lifetime to build and only a second to lose,” says Bibianne “Bibi” Fell, founder of Fell Law, PC.

Fell, who opened her firm in January, is recognized as one of the best plaintiff’s lawyers in the nation. She is one of the few attorneys to earn a verdict of more than $100 million, one of the top ten verdicts in the country. She boasts the numbertwo dollar verdict in California and a number one Intentional Tort verdict in 2008. She also boasts a successful family life regardless of the challenges faced in her profession.

Carrying on a Family Tradition

Fell, who was raised in a small community on the island of O’ahu, decided to become a lawyer at age four. She is a fourth-generation lawyer. Her grandfather was a lawyer, her dad and two uncles are lawyers, and her cousin is a lawyer. She is the first woman lawyer in the family. But soon the fourth generation will not be the last. Her middle daughter Alexa, age 13, is planning on becoming the family’s fifth generation attorney.

She is often asked how she balanced work and home life. “It was really hard. I couldn’t have done it without the incredible

16 Attorney Journals Orange County | Volume 168, 2020 support of my family,” she says. Early in her practice when she first started trying cases, she was a single mom with daughters two and four years old. Their father was in the Navy and deployed during much of their early childhood.

In one particularly lengthy trial her father flew in and handled most of the family chores for six months. He walked the kids to and from school, prepared meals, and took care of all their daily needs while Fell was in trial in another city. It was a reversal of her early home life in which she was raised primarily by her mother because her father was often in trial. “My family jokes about it being a case of ‘payback,’” she says. Fell says, “Being a single mom with a heavy litigation practice was tough. When I look back on that time, I’m surprised at what I was able to accomplish while raising my girls. I guess you never know what you’re capable of until you’re put into the situation where you have to step up to the challenge.”

Tenaciousness and Trust

Fell represents individual people and families in what is most often the worst moment of their lives. Building and maintaining a high level of trust is an essential element in the ultimate success of achieving their goals in the legal system. “I love representing these people,” she says.

Her faith in being on the right side of justice makes Fell a

The Fell Law Team (from left to right and top to bottom): Lupe Frayer-Godat, Kelsie Russel, Marlee Horwitz, Trevor Fell, Bibi Fell

JOURNALS

A T T O R N E Y O F T H E M O N T H 2020 2020

Bibi Fell and Fell Law Associate and Husband, Trevor Fell

tenacious lawyer who keeps digging until she finds the best way to overcome whatever hurdle a case may throw in her path. She puts in the necessary hours or days in research, finding arguments by analogy, or arguing for a change in existing case law so that even if the issue is lost, each client knows she put everything she has into the effort.

A tenacious approach, one that doesn’t settle for the apparently obvious or easy path, often leads her to innovative and creative solutions. For example, she successfully argued that live animals sold as pets should be treated like products for purposes of strict products liability. She is known for being creative and smart and, when backed into a legal corner, comes out fighting for the win. Her cases not only involve addressing past injuries, but also provide for the future well-being of clients in real need. One of those cases involved a five-year-old girl with Downs syndrome. The money in that case represented the child’s future security. Her parents’ worst fear was what will happen when they are not around to care for her. Because of Fell’s efforts the child will be able to live with her family and not in a state facility. Fell says that in her cases it’s not about the money. It’s about what the money can do to effect positive change and restore dignity in a client’s life.

“I used to represent big business and I made a lot of

18 Attorney Journals Orange County | Volume 168, 2020 shareholders a bit of money, but here I get to watch the transformation of someone who has been through something horrific, through their recovery and into a future that has meaning and hope. Now they can afford to go back to school and get retrained because physically they can’t do their old job. They can afford to have someone come into their home to care for them, so they don’t have to be separated from family,” she says.

A former client, Dawn Kali, wrote, “Bibi Fell changed my life. She believed in me and my case, when no one else would. Her dedication, kindness, integrity, and determination helped me face my difficult and emotional case. Not only did she win my case, she changed my life. She gave me the validation I needed to move forward. Bibi Fell is not only an incredible lawyer, but she is an incredible human being.”

Likeability and the human touch may seem out of place in earning such a remarkable record, but they are key factors in Fell’s success. She says, “When it comes to my edge over the competition, I think it’s that personal touch and the time that I spend with each client. An attorney cannot truly convey value of what a client has lost because of injury unless that attorney really knows his or her client on a personal level. I take the time to understand their lives and what is meaningful to them.”

Do the Right Thing Every Time

Fell says she enjoyed the intellectual rigor of complex corporate litigation, but never felt that she was doing something personally meaningful. When she began doing plaintiff’s work, she realized she was making a big impact on one person’s life one person at a time. “That feels very meaningful to me. I enjoy the parts about plaintiff’s work that might turn others off, such as the time spent with the client, receiving phone calls about not only the case, but whatever else is burdensome, or helping someone who has never encountered the legal system to make sense of litigation. I take a lot of latenight and weekend distress calls. If I was to choose another profession, I’d probably be a therapist,” she says.

Her personal philosophy is to “do the right thing every time.” It’s a philosophy that she applies equally to clients, her staff and attorneys she works with on a referral basis. “I always put my employees first. If your employees are not happy, you’re not going to get good work from them. It’s important to assure them that they are valued as a person.” Fell believes one of her main responsibilities is to teach her employees.“My number one job with a young lawyer is to teach him how to do what I do. I hope they do that even better because that frees me up to try cases and conduct high-level strategy. I want to give my employees as much or more than what they are giving to me. It keeps them happy, they work hard, and they see a future.”

Doing the right thing every time also attracts continuing referrals from other attorneys and law firms. Her experience includes working with others at different capacities from handling referrals, to taking over shortly before trial, to 50/50 co-counsel relationships. “It’s important to me that the lawyers I work with are happy that they brought me on. I work very hard to ease co-counsel’s workload, provide expertise my co-counsel may not have, and dramatically increase settlement/trial value so that it pays to bring me on board,” she says.

Doing the Right Things Outside the Office

Fell and her husband, Trevor, have been married five years and are raising five children: Isabel, Alexa, Madelyn, Benedict, and Rebecca. She has been a resident of San Diego since 1998.

When growing up in O’ahu, she was an avid surfer. Finding the local ocean waters a bit too cold for that, she took up a new physically active hobby— salsa dancing. She turned professional, placing internationally in professional competitions, teaching and performing at International Salsa Congresses, and dancing for a local dance company. She even owned her own dance company Molly Pan Photography - @mollypanphotography

prior to becoming licensed to practice law.

She and her family love being outdoors, especially rock climbing, swimming, running, biking, paddle boarding, and, when in Hawaii, she still finds time to surf.

Fell is on the advisory board of the National Institute for Trial Advocacy and is a Program Director for the NITA Pacific Regional Deposition Skills program. She has taught for NITA for 10 years throughout the United States and in Northern Ireland.

She also hosts a weekly small group of families with young children at her home through her church, Maranatha Chapel. Teaching remains part of her life out of the office. Last year she taught Advanced Trial Advocacy at the USD School of Law, lectured to all 1L students at USD Law on Storytelling, spoke at the Kentucky Justice Association’s annual conference, Co-Chaired the Alliance of Women Trial Lawyer’s annual conference, spoke at CAALA Las Vegas, CAOC’s annual conference, to CASD’s new lawyers, at the National Trucking Association’s San Diego conference, Indiana Association of Justice, CAALA Women’s Conference, was the Program Director for NITA’s Pacific Regional Deposition Skills program, ABA Webinar Series, and San Diego Inn of Court Trial Program.

She chairs the Alliance for Women Trial Lawyers annual conference in New Orleans. Alliance is an organization of women plaintiff lawyers from around the country.

Born to Lead

Fell opened her firm in January with one paralegal, Lupe Frayre. Her plans for Fell Law, PC are to add two attorneys within the next five years, but to maintain a small caseload so that each client gets the full attention they deserve. She says her current biggest challenge is that she did not expect to acquire so much business so quickly.

Fell says that success will follow if you consistently do the right thing at home, in the office and in the courtroom. “That’s my philosophy and it’s worked well for me and the three generations of attorneys before me. As far as being a trial lawyer, I was born to try cases. I couldn’t imagine having as much fun doing anything else.” ■

Contact Bibianne Fell Fell Law, PC 402 W. Broadway, Suite 950 San Diego, CA 92101 (858) 201-3960 www.fellfirm.com

EXPERIENCE

» EDUCATION • University of San Diego, School of Law, J.D. magna cum laude, Law Review, Order of the Coif (2004) • University of California, San Diego, B.A., Political Science, cum laude, Dean’s List (2001)

» HONORS/AWARDS • Daily Journal’s Top 100 Women Lawyers • Superlawyers • 2019 Recipient of the Outstanding Trial Lawyer Award by CASD • One of three finalists for Consumer Attorneys of San Diego’s 2018 “Trial Lawyer of the Year” • The National Trial Lawyers: Top 100 Trial Lawyers • Top Attorneys in Southern California • University of San Diego, School of Law, Rising Star Recent Alumni • #2 Plaintiff Verdict in California in 2018 • #1 Intentional Tort Verdict in California in 2018 • Top Ten Verdicts in the United States 2018

» MEMBERSHIPS AND AFFILIATIONS • American Board of Trial Advocates, Member, Trial College Fellow • Alliance of Women Trial Lawyers, Annual Conference Co-Chair • National Institute for Trial Advocacy, Advisory Board Member, Program Director, Faculty • University of San Diego, School of Law, Adjunct Professor • Consumer Attorneys of San Diego, Member • Consumer Attorneys of Los Angeles, Member

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Ten Considerations for PerformanceBased Compensation

by Leigh Riley

With the dawn of the new year, many companies are taking the initial steps that they hope will allow them to meet their financial and strategic goals in 2020 and beyond. Often, one core element of this process is designing a system of performance awards that will be granted to the executive team, with the intent to motivate executives to achieve the company’s goals by aligning the executive team’s interests with the performance of the company. Performance awards can come in many forms, including stock options, performance-vesting restricted stock or stock units, or cash bonuses. The process of designing performance awards is often messy because there are too many choices and too many unknowns, and companies must also face the risk of inadvertently designing a program that could incentivize bad behavior. As you think about your performance awards, here are ten considerations to keep in mind:

1

Performance goals should reflect a company’s business strategy. While it may seem obvious, in setting compensation performance goals, a company should ask two key questions – first: “what is our business strategy?” and second: “what performance goals will help us motivate employees to further that strategy?” Don’t be afraid of including “soft” or non-financial goals, such as rewarding the CEO for completing certain steps in a succession plan or for increasing customer satisfaction. 2 If you are a publicly traded company, one benefit arising from the changes made to Section 162(m) of the Internal Revenue Code by the Tax Cuts and Jobs Act, is that you can now exercise more discretion to modify performance goals. Under the prior Section 162(m) rules, in order for compensation to be “performancebased” and fully deductible by the company, the Compensation Committee could not exercise any discretion to modify the performance goals after they were initially established. Now that the automatic deduction for performance-based compensation is gone, Compensation Committees have more leeway to (judiciously) increase their use of discretion. This ability to exercise discretion alleviates some of the stress of trying to get the goals exactly right on the front end and provides a path to make adjustments when unforeseen changes in the business arise during the performance period.

3Typically, long-term incentive compensation programs use more than one performance goal, including at least one earnings metric (such as Net Income, EBITDA, or net operating profit) and one return metric (such as ROIC, EPS, or TSR). Therefore, companies shouldn’t agonize to figure out the “one right goal” or feel they should have their executive team focused on a single outcome. If more than one goal is selected, use their weighting (e.g., achievement of goal #1 results in 70% of the award being earned and achievement of goal #2 results in 30% of the award being earned) to reflect their importance to the overall business strategy. 4 Relative performance goals, which compare the company’s performance to a peer group (such as relative total shareholder return), are popular choices because relative goals do not require a “crystal ball” to predict future income, profit, or expenses. Even though relative goals typically are used by publicly traded companies, large privately held companies should not shy away from them but should ensure that the peer group companies are publicly traded so that financial information is readily available. 5 For publicly traded companies, Economic Value Added (EVA) is a performance metric that has been well received by the investor community and is being used by Institutional Shareholder Services (ISS) in its pay-for-performance modeling, but it has not yet been widely adopted. It’s currently estimated that only about 6% of companies use EVA in their incentive compensation programs. EVA is calculated as Net Operating Profit After Tax minus (Weighted Average Cost of Capital x Capital Invested). So, if you are struggling to select a goal (whether publicly traded or privately held), this is one metric that may be worth considering. 6 Regardless of the performance goals a company selects for its annual and long-term incentive compensation programs, those goals and the progress towards achieving those goals should be communicated to program participants to maintain their focus and line of sight. Quarterly communications between the company and executives on progress toward achievement of performance goals are evolving as a “best practice.”

7Compensation clawbacks that cover financial restatements have become a “best practice” for publicly traded companies even though the Securities Exchange Commission has not yet issued its anticipated rules. Even though privately held companies are not subject to any legal obligation to implement a compensation clawback policy, they should consider it. Such policy would allow the company to “claw back” any bonuses that were erroneously paid, or equity awards that were erroneously vested, as a result of financial performance that, after-the-fact, was found to be incorrect. Including such a policy can help keep executives and employees honest and focused on achieving the company’s goals, while deterring bad behavior or trying to game the system. 8 A recent trend is the expansion of clawback policies to include clawbacks in instances of violation of company policies (including, for example, anti-harassment policies) or other behaviors that could be detrimental to the company’s reputation. However, if these policies are so broad that they are unlikely to actually be enforced by the company, they may create issues from a public relations perspective in the event that a company can clawback compensation but chooses not to do so. Therefore, while it may be advantageous to use a clawback policy to help enforce a company’s policies and discourage bad behavior by employees and executives, the policy still needs to be sufficiently tailored to avoid putting the company in a difficult position when it catches behavior that the company would view as not warranting a clawback.

Companies considering adopting or expanding compensation clawback policies should confirm they are consistent with their other executive compensation documents. For example, companies should consider whether their clawback policies cover the same range of behaviors as the provisions in their employment agreements relating to “for cause” terminations. Companies should also ensure that their standard separation and release agreements account for potential compensation clawbacks post-termination.

10

Finally, companies should check their employment agreements to see if they contain obligations relating to performance awards. Employment agreements may contain certain guarantees about performance-based compensation, such as that the performance goals will be based on EBITDA or will be established and communicated within 90 days of the beginning of the year, or the executive will be permitted to earn a bonus of up to 200% of target. When companies deviate from those contractual obligations, they set themselves up for potential lawsuits. n

Leigh Riley is a partner and a vice chair of the Business Law Department with Foley & Lardner LLP. She focuses her practice on employee benefits and executive compensation. In the area of employee benefits, Ms. Riley concentrates on welfare plans, including COBRA and HIPAA privacy rules, and retirement plans, including nonqualified deferred compensation arrangements. In the area of executive compensation, she counsels both private and public companies on establishing and administering all types of executive compensation programs.

Can Lawyers Be Required to Give Advance Notice Before Departing? Perhaps Not, Says American Bar Association

As readers know, corporate executives (and regular employees) are often subject to non-competes in their employment agreements, as well as other provisions designed to ensure that if they leave their job, they will not be able to work for a competitor for some period of time. By contrast, law firms are ethically prohibited from imposing such restrictive covenants on their attorneys. The justification for this exceptionalism is the premise that clients have the right to choose their counsel and any restrictions on a lawyer’s right to practice could impede that choice. (Of course, why client choice is more imperative in an attorney/client relationship than other professional relationships of trust has always been a bit vague.) ABA Model Rule of Professional Conduct 5.6 sets out the general prohibition on restrictions on a lawyer’s right to practice. Rule 5.6(a) states that a lawyer shall not enter into a “partnership, shareholders, operating, employment, or similar type of agreements that restricts the right of a lawyer to practice after termination of the relationship….”

Despite this rule, most law firm agreements impose some kind of “notice period” on departing attorneys, requiring them to give notice well in advance of their departure. Although such provisions are common, law firms frequently choose not to enforce them or shorten the time period. Recent news articles, however, have suggested an uptick in law firms’ attempts to enforce long notice periods on their departing attorneys.

Given that notice periods implicate Rule 5.6, there has always been a question about their enforceability, particularly when the notice period is lengthy. Recently, in Formal Opinion 489, the ABA Standing Committee on Ethics and Professional Responsibility came out swinging against them. The ABA said that, although a “reasonable” notification by Rachel F. Cotton

24 Attorney Journals Orange County | Volume 168, 2020 period may be included in firm partnership/employment agreements to allow for a smooth transition, “these notification periods cannot be fixed or rigidly applied without regard to client direction, or used to coerce or punish a lawyer for electing to leave the firm, nor may they serve to unreasonably delay the diligent representation of a client.” The opinion goes on to say that departing lawyers “may not be held to a pre-established notice period particularly where, for example, the files are updated, client elections have been received, and the departing lawyer has agreed to cooperate post-departure in final billing.” This blow to the enforceability of notice periods may remove one more weapon from a law firm’s arsenal to discourage lawyers from leaving. Although many law firm departures are not contentious, the opinion may embolden lawyers to refuse to abide by notice periods even in instances where the law firm insists upon one.

Long live Rule 5.6. n

As a Partner at Zuckerman Speder, Rachel F. Cotton is a dedicated litigator who represents individuals and corporations in government investigations, criminal prosecutions, and complex civil disputes. Rachel also helps attorneys navigate the professional responsibility challenges that confront them. She advises both lawyers and law firms on professional ethics, legal malpractice and disciplinary investigations.

Frank R. Fasel (Left), Christopher A. Guldjian (Right)

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