Attorney Journals, Orange County, Volume 154

ORANGE COUNTY

Volume 154, 2019 $6.95

Tips for Lawyers Seeking Traumatic Brain Injury Cases

Jacob Sanders

Huge Win of the Month

Law Firm Business Development: Planning Is Indispensable

Mike O’Horo

CA’s New Professional Responsiblity Rules

Jesse Gessin, Partner and Jay Barron, Senior Counsel Keller/Anderle LLP, Irvine The Value of a Strong Narrative

Elisa Cariño

Imputed Disqualification: Challenges of Suing Former Clients

Choosing the Right Content for Your Law Firm Newsletter

Esquire Deposition Solutions

Corrie Benfield

How “Stay Interviews” Can Improve Employee Retention

Crystal Enekwa

Law Firm of the Month

Rizio Liberty Lipinsky, Consumer, Victim and Employee Attorneys Unite to Create Modern, Statewide Consumer Law Firm

Santa Ana

REFERRAL & CO-COUNSEL RELATIONSHIPS

Your

NEVADA

PER SON AL IN JURY PA RTNE R

NEVADA’S LARGEST & HIGHEST RATED INJURY LAW FIRM Your

NEVADA

“Rick is one of the best lawyers in the country. I call him every time I have any issue in Nevada and would not hesitate to refer him any type of case ofPER anySON size.”AL IN JURY PA RTNE R ~ C. Michael Alder, Esq., Alder Law, Los Angeles, California CAALA Past President and Former Trial Lawyer of the Year

“I recently co-counseled a serious Las Vegas injury case with Rick Harris and his law firm. Rick’s advocacy and skills are extraordinary, and were instrumental in resolving and maximizing our client’s sizable recovery.” ~ Carl Wolf, Esq., Callaway & Wolf Northern California Super Lawyers San Francisco, California

© 2016 RHLF

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Keller/Anderle LLP BUSINESS TRIAL LAWYERS

2019 EDITION—NO.154

TABLE OF CONTENTS 8 Law Firm Business Development: Planning Is Indispensable

by Mike O’Horo

10 Tips for Lawyers Seeking Traumatic Brain Injury Cases

by Jacob Sanders

12 Community News

14 Choosing the Right Content for Your Law Firm Newsletter

EXECUTIVE PUBLISHER Brian Topor

by Corrie Benfield

EDITOR Wendy Price

LAW FIRM OF THE MONTH

16 Rizio Liberty Lipinsky, Santa Ana Consumer, Victim and Employee Attorneys Unite to Create Modern, Statewide Consumer Law Firm

CREATIVE SERVICES Penn Creative CIRCULATION Angela Watson PHOTOGRAPHY Chris Griffiths STAFF WRITERS Dan Baldwin Jennifer Hadley CONTRIBUTING EDITORIALISTS Jacob Sanders Mike O’Horo Corrie Benfield Crystal Enekwa Elisa Cariño WEBMASTER Mariusz Opalka ADVERTISING INQUIRIES Info@AttorneyJournal.us SUBMIT AN ARTICLE Editorial@AttorneyJournal.us OFFICE 30211 Avenida De Las Banderas Suite 200 Rancho Santa Margarita, CA 92688 www.AttorneyJournal.us ADDRESS CHANGES Address corrections can be made via fax, email or postal mail.

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by Jennifer Hadley

16 26 How “Stay Interviews” Can Improve Employee Retention

HUGE WIN OF THE MONTH

22 Jesse Gessin, Partner and Jay Barron, Senior Counsel for Keller/Anderle LLP, Irvine The Value of a Strong Narrative

by Dan Baldwin

by Crystal Enekwa

28 CA’s New Professional Responsibility Rules

by Elisa Cariño

30 Imputed Disqualification: Challenges of Suing Former Clients

by Esquire Deposition Solutions, LLC

22

Editorial material appears in Attorney Journals as an informational service for readers. Article contents are the opinions of the authors and not necessarily those of Attorney Journals.

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Law Firm Business Development: “Plans Are Useless, but Planning Is Indispensable…”

by Mike O’Horo

“In preparing for battle I have always found that plans are useless, but planning is indispensable.” – Dwight D. Eisenhower

L

awyers detest creating business development plans. They delay and resist as long as possible, and when their firm finally brings down the hammer, too often they create something pro forma that lets them check the required box, but is of little practical use, and never gets looked at again.

Former president Dwight D. Eisenhower, when he was overall Commander of Allied Forces in WWII, famously said, “In preparing for battle I have always found that plans are useless, but planning is indispensable.”

What did Ike mean by this seemingly self-cancelling declaration?

It was that the plan, i.e., the tangible, documented result of the planning, is vulnerable to many forces outside your control. The battlefield is complex, and the many moving parts may not move as predicted.

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Attorney Journals Orange County | Volume 154, 2019

Markets are no different. The many moving parts include: • clients • prospects • competitors • allies • colleagues • your firm’s leadership • the actions of federal, state, and local governments • new entrants into the market who may introduce disruptive innovations • geopolitical or macroeconomic factors Any of the above could render part or all of your plan obsolete.

If so, why plan?

Planning (the verb) consists of investigation and thinking that cause you to identify and examine these variables, which raises your awareness and gives you a much more complete and useful perspective.

Planning consists of investigation and thinking that cause you to identify and examine [key] variables…

That, in turn, increases your ability to recognize the earliest indicators of change, anticipate their likely effect, and devise an informed response to them. Without going through that rigorous thinking, you’ll continually be surprised by most developments, with little chance to anticipate or respond effectively.

You can avoid most surprises Yes, the world is volatile, and things change quickly and often suddenly. But, if you’re taken completely by surprise by an announcement by your clients or a major development in their industry, it’s reliable evidence that your planning was inadequate.

I don’t mean that planning will make you clairvoyant, only that most big developments are the product of many precursors that, taken together, allow you to make some educated guesses about what’s most likely.

Example: General Motors’ factory-closure announcement, November 26, 2018 To the casual observer, GM announcing in late November that they’d close five plants and lay off 14,000 workers was a shock. I’m guessing that many firms and lawyers who do a lot of work for GM, its suppliers, and dealers experienced stomach-roiling anxiety as a result. “Will our work go away, too?”

However, there are many factors that would have allowed affected lawyers to anticipate this and begin to diversify.

Maybe not the precise “when,” but that it had to happen.

Technology and connectivity pose the question of whether it’s necessary to own an automobile. Look at the perfect storm of confluent events that led to GM’s production cut, and that is transforming the entire industry: • Autonomous vehicles • On-demand ride services, AKA “Mobility as a Service (MaaS)”, e.g., Uber, Lyft. (GM invested $500m in Lyft, 2016) • Online shopping, free delivery. No driving to stores.

• Free or low-cost HD video connections that enable facetime without travel • Declining interest in driving. For people aged 16 to 44, the percentage who have a driver’s license has been decreasing steadily since 1983.

• Migration to cities, where cars are a liability. 54% of people worldwide live in cities. Sources estimate this will grow to 2/3 of world population in the next 15-30 years Anyone aware of even some of these factors wasn’t surprised

by GM’s move.

Consequences of these trends • Auto Insurance Market to Shrink 60% by 2040, 71% by 2050: KPMG • Driverless, Shared Cars to Cut Vehicle Ownership by Half: Barclays (Insurance Journal, May 19, 2015) • Online car buying could shrink dealer networks by almost 50% in a decade (Fleet News, Jan 19, 2018) • Autonomous Vehicles Will Shrink Auto OEM Collision Repair Revenue by Nearly 50 Percent by 2030 (KPMG, May 17, 2017) OEMs will see a 48% dent in their collision parts business as a result of self-driving cars

What should you do?

So, if you’re a lawyer whose work has come primarily from the automotive sector, how should you plan for developing business during the next phase of your career?

When conditions change for your clients, they’ll change for you, too…

You could start by taking the advice being offered to your automotive clients by observers such as Deloitte.

“Carmakers need to make use of the technologies offered

by Industry 4.0, the Internet of Things, and data analytics to take advantage of opportunities to manage costs and continue to be globally competitive.”

When conditions change for your clients, they’ll change for you, too, either positively or negatively, depending on your preparedness and response. You can’t keep selling the same services, in the same way.

You must evolve. The good news is that your clients want you to. If you consistently show that you’re paying attention to their business and trying to anticipate their needs, they’ll help you do just that by sharing their knowledge and guiding you to develop the solutions they need.

“But, I’m not in the automotive market” Please, please don’t feel sanguine because your clients’ industries aren’t on the front page of the business press with unpopular announcements. All products, services, companies, and industries go through maturity cycles. (It’s happening in Legal right now.)

Fortunes change. Today’s Amazon is tomorrow’s GM. Pay attention. Be prepared.

Have a plan, but place your trust in the actual planning, not the resulting plan. n Mike O’Horo is the co-founder of RainmakerVT and has trained 7,000 lawyers in firms of all sizes and types, in virtually every practice type. They attribute $1.5 billion in additional business to their collaboration. His latest innovation, Dezurve, reduces firms’ business development training investment risks by identifying which lawyers are serious about learning BD.

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3 Digital Marketing Tips for Lawyers Seeking Traumatic Brain Injury Cases Online

by Jacob Sanders

O

ne of the greatest professional concerns facing personal injury lawyers today is an ever-expanding pool of competition online. By focusing your law firm’s digital marketing efforts on particular types of injuries, such as traumatic brain injuries (TBI), you can stand out from your competitors online and establish a distinct presence in search results. Here are three tips for lawyers seeking TBI cases online.

Feature Creative Assets

1. Showcase Your Focus Most lawyers know their ideal client: the one that signs up.

Although you likely have several areas of PI represented on your website and want to attract EVERY potential client with your services, showcasing your focus and dedicating a full section of your website to something specific, like traumatic brain injuries, is important for two reasons.

“Embracing Your Space” and “Fatal Thursdays” are examples of creative assets our firm has developed for our personal injury law firm clients seeking leads for specific injury cases.

• I ncrease visibility—Along with a balanced digital marketing approach to your law firm’s website, search-engine-friendly copywriting on a TBI page can dramatically increase your visibility to those searching the web for TBI legal help.

• Decrease competitors—As we mentioned earlier, most lawyers just want the phone to ring, so they market themselves as the trusted expert in almost every type of injury case under the sun. By picking a few areas of specialization for your law firm and building up quality pages that demonstrate this aptitude and ability on your website, you can dramatically decrease your competition.

Your competition is afraid to focus their marketing—so think of it this way: would you rather directly address an audience of 10 potential TBI clients, or yell at a group of 1,000 people from whom you take every personal injury case imaginable?

2. Focus on Web Design While a beautiful, mobile-responsive website and first page Google results are a good omen for your law firm’s digital marketing future, it’s becoming evident that even these best practices are being bested. Once again, increasing competition in the online legal marketplace is overwhelming clients online.

Too many options on Google can create “analysis paralysis.”

With your website now focusing on TBI cases, you can further differentiate your firm by featuring one-of-a-kind creative assets relating to TBIs.

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If you don’t usually go for frilly things or fancy gimmicks, you should remind yourself that your law firm’s website isn’t designed to sign YOU up as a client. Right now, the people searching for your firm are vulnerable and injured and that person needs your website to help them decide if they can trust you to help them get justice.

Clients don’t choose your law firm from a place of logic— the decision to hire a law firm involves more emotion than rational thought.

By creating a dynamic and well-designed resource page for a specific injury, like a traumatic brain injury, you are appealing to the potential client’s emotional and reactive nature. Compelling graphics that demonstrate the severity, scope, and statistics surrounding TBIs, mixed with quality copywriting, will generate more goodwill, trust, and interest in your firm than any “straightshooting,” meat-and-potatoes presentation of the facts ever could.

If bad design or poor writing is keeping a potential TBI client from signing up with you, you owe it to yourself to focus on TBIs, feature creative assets, and create a TBI webpage with your client’s best interest in mind.

3. Write Your Copy for Conversion There is no magic digital-marketing-silver-bullet that’s guaranteed to bring down high-value cases from the web. If you focus your digital marketing on TBIs, and bring TBI stats to life with creative assets, you still must ensure the words on your TBI page are engineered to convert clients and be seen by search engines.

Below is a simple 5-paragraph template that can help your law firm write a TBI page that converts. Remember, this is just an initial framework to orient your copywriting efforts around TBIs. Once completed, this template can then be the foundation for your creative asset, showcase page, or other TBI advertising efforts your firm may choose to pursue.

5-Paragraph TBI Page Template • Intro to TBIs and PI—The intro should be short and to the point.

Provide a brief definition of TBIs, give a few common causes for them, and state that a trusted legal opinion is necessary in such delicate cases.

• Localize the Text—Mention your legal staff by name, the state and city your law firm is in, your history with TBIs, and any relevant awards or recognition your lawyers have received. End this paragraph with a Call-To-Action with your law firm’s phone number and contact info.

• What is TBI—Here is where you can cite statistics on TBIs, gather facts on symptoms, and link the page with medical resources on

recovery from TBIs. Also list the long-term effects and costs associated with TBIs. • Causes of TBIs—List the most common accidents, and acts of negligence, that can lead to TBIs. You increase your keyword reach here by mentioning other personal injury areas your firm covers.

• How your law firm helps in TBIs— Detail the work that goes into investigating accidents, FAQs dealing with insurance companies, and ensure that clients know the ways medical assistance, treatment, and recovery will take place as they work with you.

End this with another strong Call-To-Action with your number and contact info.

In summary . . .

Your website is a billboard on the digital highways of the Internet, and potential clients are driving by at light speeds. By focusing on specific case types, incorporating strong visuals and thorough copywriting into your digital marketing campaigns, you can capture attention and drive high-value cases like TBIs to your site. n Jacob Sanders is the Marketing Content Strategist at Consultwebs and has worked for many years as a digital marketing coordinator and as a Marketing Director at a personal injury law firm before launching his own marketing consulting agency and joining forces with Consultwebs. Jacob also created and serves as a co-host of our LAWsome podcast series which provides legal industry insights and access to the best experts in law firm development. Learn more at https://www.consultwebs.com and https://www.thelawsomepodcast.com.

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COMMUNITY news n Snell & Wilmer is pleased to announce that Orange County attorney Tony Carucci has joined as the first Chair of the Associate Board of Directors for The Constitutional Rights Foundation of Orange County (CRF-OC). CRF-OC is a local non-profit education organization dedicated to promoting TONY CARUCCI civic literacy, youth leadership and career awareness among OC teens.

Operating consistently since 1981, CRF-OC organizes and operates high-quality, interactive civic and law-related education programs that connect students directly with professionals and community leaders. As a founding member for the Associate Board of Directors, Tony will work with the other board members to support the mission and programs of the CRF-OC. Tony concentrates his practice on business litigation in state and federal courts. He represents clients in matters involving breach of contract, business torts, and real estate disputes. He also represents a variety of lenders and financial institutions in creditors’ rights litigation.

His practice includes collections litigation and judgment enforcement against domestic individuals and business entities. Tony also advises U.S. and foreign-based gaming companies in complying with U.S. gaming laws and regulations. n Newmeyer & Dillion LLP is pleased to announce that J. Kyle Janecek has been hired as the firm’s newest transactional associate.

Janecek joins the firm’s business transactions team supporting the corporate, real estate and privacy & data security groups. Janecek’s experience and skillset includes J. KYLE JANECEK insight into various facets of the legal industry, breadth of dispute resolution knowledge, a business-oriented background, and an inquisitive spirit. He enjoys contributing to the strategic process of finding creative and effective solutions to move a client’s end goals further to highly favorable results.

Janecek has also spent time working with nonprofits, such as the Legal Aid Society of Orange County and the Compton Self-Help Center, where he provided pro bono legal advice to individuals across a variety of legal disciplines. Janecek earned a B.A. in Business Communications and B.S. in Economics from Arizona State University and his J.D. from Pepperdine University School of Law.

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n For a fourth consecutive year, Berger Kahn is proud to be listed among the finest firms in the country with recognition to the list of “Best Law Firms” in Insurance Law, Commercial Litigation and Personal Injury Litigation. The Best Lawyers “Best Law Firms” ranking is based on a rigorous process of evaluation that includes peer and client reviews and is reserved for less than 4% of all law firms nationwide.

CRAIG SIMON

n Umberg Zipser (U/Z) is pleased to announce that the firm has been ranked Tier One in the “Best Law Firms” list by U.S. News & World Report and Best Lawyers® for the Orange County metropolitan area.

The firm has received this recognition each year since it was formed. The ranking showcases top law firms DEAN ZIPSER recognized by clients and peers for delivering professional excellence and for high quality ratings. The rankings indicate a unique combination of quality in practice and legal expertise.

In 2019, the firm again received three Tier One rankings in Commercial Litigation, Intellectual Property Litigation, and Real Estate Litigation.“It is an honor for our firm to be listed again as one of the Best Law Firms in Orange County. The continued recognition from our clients and peers is affirmation of the trusted advisor role our team endeavors to provide for our valued clients,” said cofounding partner Dean Zipser. n Jennifer Keller, a nationally prominent trial attorney at Keller/ Anderle LLP in Irvine, has been named to the 2019 Benchmark Litigation “Top 100 Trial Lawyers in America,” an exclusive list of the top courtroom advocates in the United States.

According to Benchmark Litigation: JENNIFER KELLER “This elite group of practitioners were recognized as the best in breed for the coveted and in-demand, yet increasingly rare, art of trial law based upon peer and client review as well as these attorneys’ lead role in spearheading some of the most high-stakes and high-profile cases to make their way to the trial level.”

n The Orange County Bar Association (OCBA) is proud to announce the following recently elected and appointed members who will be installed as OCBA Directors at Large at the 2019 Judges’ Night & Annual Meeting on January 25, 2019. Michael L. Fell (Law Offices of Michael Fell), Kelly Galligan (Rutan & Tucker), John S. Gibson (Crowell and DEIRDRE KELLY Moring), Thomas A. Pistone (Pistone Law Group), Mei Tsang (Umberg/ Zipser), Darrell P. White (Kimura London & White LLP), Christina Zabat-Fran (St. John Knits) and 2019 OCBA Young Lawyers Division Chair Kristin Garcia Gomez (Honda N.A. Inc./American Honda Motor) will be installed along with the other continuing board members, OCBA officers, and OCBA Charitable Fund Board of Directors on Friday, January 25, 2019 at the Irvine Marriott.

The 2019 OCBA officers include Deirdre Kelly, President; Scott Garner, President-elect; Larisa Dinsmoor, Treasurer; Daniel Robinson, Secretary; and Nikki P. Miliband, Immediate Past President. The Honorable Glenda Sanders, Judge of Orange County Superior Court, will serve as the installing officer. n Bisnar Chase has recently welcomed two new lawyers to its team. Thomas E. Martin has approximately 33 years of experience as a trial attorney handling all aspects of civil litigation from auto accidents and premises liability cases to construction site accidents and business litigation. Ian Silvers has a decade of experience in employment law. Since THOMAS MARTIN 2013, he has been successfully handling wage and hour claims for a Long Beach-based law firm. His zeal, Silvers says, has always been to help people, especially those without the means and resources to proceed with their cases.

Both Martin and Silvers have a passion for giving back to the community and say they have always admired Bisnar Chase’s substantial IAN SILVERS efforts to continually help the community. Managing Partner Brian Chase said that he views both Martin and Silvers as tremendous assets to the firm. “We take a great amount of pride in having created this wonderful, high-energy space where individuals can learn and grow without limits,” he said. “We are thrilled to add these two accomplished attorneys to our trial team.”

n Multiple Shustak Reynolds & Partners attorneys have been named as 2019 Super Lawyers Honorees including Erwin J. Shustak, Managing Partner, 2019 Super Lawyers; Jonah A. Toleno, Partner, 2019 Super Lawyers; George Miller, Partner, 2019 Rising Stars; Kate Bowles, Senior Associate, 2019 Rising Stars; Amber Condron, Counsel, 2019 Rising Stars.

Founded in 1991, Shustak Reynolds & Partners, P.C. is a specialty law firm with a national practice focused in the areas of securities, corporate finance and business law. The Firm operates from offices in New York and California and is comprised of experienced, sophisticated attorneys who have earned a solid reputation as strategic problem solvers, ardent negotiators and successful deal makers.

GEORGE MILLER

JONAH TOLENO

ERWIN SHUSTAK

KETHERINE BOWLES

AMBER CONDRON

Have a Press Release you would like to submit for our Community News?

Email it to PR@AttorneyJournals.com

Attorney Journals Orange County | Volume 154, 2019

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Choosing the Right Content for Your Law Firm Newsletter

by Corrie Benfield

M

any of the law firms we talk to do a great job of maintaining contact information for former clients, but they aren’t sure how to capitalize on those connections. An email newsletter can be a great way to maintain those relationships and keep your brand fresh in people’s minds.

A good newsletter should remind former clients that you are knowledgeable, caring and always there to help. But what should it have in it? Choosing the right content is the challenge many firms face in putting together an effective— and share-worthy—newsletter.

Guidelines for Writing Newsletter Content As lawyers, it can be easy to fill a newsletter with recent case results and industry updates, but is that what your former clients are interested in? Chances are, not really.

Instead, fill your newsletter with content that is: Useful and relevant to their everyday lives—A survey by Nielsen Norman Group on newsletter preferences indicated that two-thirds of respondents’ welcome email newsletters that are informative and keep them up-to-date.

You want people to feel like they’re getting something out of your law firm’s newsletter, information they can use now or keep in the back of their minds (or inbox) just in case. Even better, you want content that is so useful that a reader decides to forward the email to others.

Easy to read—Depending on whom you ask, content experts will tell you to write at a sixth- to eighth-grade reading level. This typically means shorter sentences and words with fewer syllables to ensure better reading comprehension.

Particularly in the field of law, it’s easy to slip into jargonfilled legalese. Remember, you’re writing for everyday people, not other attorneys.

If you want to check the reading level of your content, you can view the “readability statistics” in a Word document under the “Spelling & Grammar” check. Look for the FleschKincaid Grade Level rating. (FYI, this article is rated at a grade level of 8.3) 14

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Concise and scannable—Readers spend an average of 51 seconds on a newsletter after opening it, according to another Nielsen Norman study on inbox congestion. This means your newsletter content and design need to be eye-catching and easy to skim.

Break up content with lists and bolded text. And keep in mind when designing that your email newsletter will likely be read on a mobile phone. Make it easy for the readers to quickly find the information they are interested in.

Not too sales-y—Although you definitely want to encourage readers to contact you if they have legal issues, you don’t want your content to come off as a hard sell. The goal is for your newsletter to be a resource and a reminder that your firm is there to help.

If you’re just starting a newsletter, consistency is key. You may want to set a goal of sending it out quarterly, versus jumping into a monthly commitment. Just be sure to stay consistent, and don’t bombard readers with too much of a good thing. The last thing you want is for readers to get annoyed and filter you out.

To stay consistent, it will help to map out a content plan, so you have an idea of what you would like to include in each newsletter for the year.

7 Content Ideas for Law Firm Newsletters For attorneys in some practice areas, such as family law and estate planning, content ideas can come quite easily as clients will naturally have ongoing questions to answer and needs to be met. For others, such as personal injury lawyers, newsletter content planning may require a bit more creativity.

Here are a few categories of content that can help you build a robust newsletter: 1. Newsjacking—If you see a hot topic on the news that has an interesting legal side, jump in and explain it. For example, if Uber and Lyft accidents are on the rise in your area, include a quick explainer on what to do if you’re in a crash involving an Uber.

2. Changes in the law—If a change in the law is going to affect your readers, be the go-to firm for explaining it. For example, warn readers when new insurance laws are going into effect and tell them why the change matters to them.

3. Season-specific topics—Holidays and yearly events are a reliable source of inspiration for newsletter content.

For example, everyone can use a helpful checklist on preparing their vehicle for a summer vacation road trip or a winter storm.

4. FAQs—It’s always helpful to provide the answers to frequently asked questions, and you may already have a lot of this content on your website to repurpose. If you have video FAQs, even better. And use this content to encourage interaction. Ask readers to submit additional questions.

Need a professional writer for your e-newsletter?

5. Inspirational quotes—Your firm has likely helped clients through a very difficult period in their lives. And if you are on Facebook, you know how much people enjoy sharing inspirational quotes and messages. Why not continue to be a source of support and encouragement in your newsletter?

6. Contests and giveaways—If your law firm is hosting a scholarship or any other type of contest, your newsletter is a great place to promote it. You can also plan out giveaways to keep readers engaged. For example, if someone in your firm has season tickets for a local sports team and isn’t going to use all of them, consider putting them to good use in a newsletter promotion.

7. Meet-and-greets—If your firm is sponsoring or participating in a local event, share the news and invite former clients to come by and say hello. It’s a good opportunity to catch up and remind them that you care.

Don’t Let that Email List Go to Waste!

Every email list in your database is an opportunity for marketing. You’ve built good relationships with clients, so don’t let them wither away once the cases are closed. Nurture those connections and possibly make new ones by crafting a useful newsletter that reminds people that you are the go-to law firm in your area. n Corrie Benfield brings a deep background in journalism and legal writing to her role as a Web Content Editor with Consultwebs (Consultwebs.com), where she edits and writes a wide array of content that is search engine-optimized and informative to those in need of legal help. Corrie also has 10 years of experience as a newspaper editor, developing the valuable skill of breaking down complicated information so that it can be easily digested by readers and prompt them to take action.

Unless you have the time, desire and skills, hire people who do!

We can write and design everything from e-newsletters to brochures to websites.

215-550-1435 • penn-creative.com

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Triple Threat Rizio Liberty Lipinsky Northern and Southern California Consumer, Victim and Employee Attorneys Unite to Create Modern, Statewide Consumer Law Firm

By Jennifer Hadley

On

the heels of U.S. News & World Report 2019 Best Law Firm Rankings for Rizio Law Firm in Riverside and Orange County, Liberty Law in Oakland and San Francisco, and Lipinsky Law in San Bernardino County, the firms’ respective founders announced a much bigger win for plaintiffs, employees, and victims. After years of friendship, solidified through the three powerhouse attorneys’ significant involvement in the Consumer Attorneys of California, Greg Rizio, Micha Liberty and Daren Lipinsky announced that they were pooling their expertise, passion, resources, and numerous offices throughout Northern and Southern California to create Rizio Liberty Lipinsky, a “modern, statewide plaintiff’s firm,” says Rizio.

“Together we have triple the legal know-how, triple the resources, and a much broader reach,” says Liberty, the firm’s female partner who is based in Northern California. Lipinsky concurs, adding, “Individually, we are used to facing bigger firms. But there is strength in numbers and our union, together with the teams we each bring, will enable us to offer even better representation to our clients.” To put it mildly, the three are more than up to the task of challenging statewide and/ or national corporate and insurance defense firms,

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on behalf of victims of personal injury, civil rights abuses, and unjust legal practices spanning from Mexico to Oregon.

Individual Successes, Unified Vision for California

It was no coincidence that the three attorneys chose to announce the launch of Rizio Liberty Lipinsky on the first day of the 57th Annual Consumer Attorneys of California convention in San Francisco. After all, each attorney has devoted substantial time and effort to the organization which represents the interests of 39 million Californians. In fact, Liberty was sworn in as the 2019 – 2020 President-Elect of CAOC during the convention and was also honored by the CAOC Women’s Caucus with its Woman Consumer Advocate of the Year Award. Greg Rizio became the organization’s Fourth Vice President—who will serve as CAOC’s President for the 2022 – 2023 term. Lipinsky proved instrumental in assisting in the passage of SB820, which bars secret settlements in sexual harassment and sexual assault cases, testifying before the Senate Judiciary Committee at the request of Senator Connie Leyva and CAOC. He currently serves on the Board of Governors for the organization.

JOURNALS

LAW FIRM

OF THE MONTH

2019

Senior Trial Attorneys: Greg G. Rizio, Daren Lipinsky and Micha S. Liberty

Greg G. Rizio

Indeed, the road to unity for the three attorneys was born of necessity—not for themselves, but to reach those who need the sheer might, reach, and bandwidth that RLL now offers. “There are statewide defense firms, but you don’t see many plaintiffs’ firms with a truly statewide presence,” Rizio says. And he is right in his assessment, as it is unusual to see well-established powerhouse plaintiff firms coming together to form a new firm. In doing so, Rizio, Liberty and Lipinsky have become trailblazers.

“We know that there is a difference between how law is practiced in Northern California and Southern California,” says Rizio. “We recognized that people who need a firm of this caliber are missing out. We also saw that all of the ‘specialization’ that firms are focused on can shortchange victims. Even the Bar is designed for separation and distinction between practice areas. We don’t see these divides as helpful.”

Continuing he said, “Instead, we believe that there is strength in numbers, strength in experience, strength in having Northern and Southern California attorneys, strength in fighting for victims of various types of injustices, and strength in the fact that all great trial attorneys have great teams working with them. That’s why RLL was formed. We knew that by coming together we could provide a powerful voice for not only victims of catastrophic injury, but for victims of assault, abuse, workplace harassment, and discrimination, wherever we are needed. RLL pools skills, strategy, resources, offices, and teams to best represent our clients, wherever they are in California.”

That experience—which includes record-setting successes, positive legislative change for plaintiffs, and headline-grabbing results—that each attorney brings to the firm could fill volumes. Rizio, for example, is best known for his remarkable trial skills in personal injury cases. Rizio secured the largest ever plaintiff’s verdict in Riverside County, for a 25-year-old man who was severely injured in a car accident 18

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on a freeway in Riverside County. At nearly $58 Million, Rizio’s victory for the young man in 2014 was the highest personal injury award in the state, and the second highest personal injury award in the nation for that year. As the result, Rizio was awarded the industry’s “Litigator’s Award,” which is given only to the top 1% of attorneys nationwide. He also received awards such as The Inland Empire Bar Association’s “Attorney of the Year,” and CAOC recognized him as California’s “Trial Lawyer of the Year” for 2015. Not surprisingly, Rizio maintains an AV-Preeminent Rating, a 10.0 Superb Avvo rating, and has been recognized by Best Lawyers, Super Lawyers, The National Trial Lawyers, and is an active member of the American Board of Trial Advocates (ABOTA).

Likewise, Liberty has no shortage of noteworthy successes to her credit. As Founder of Liberty Law in Oakland, she’s spent her career “giving a voice to the voiceless,” including victims of catastrophic injury, as well as victims of abuse, including child sexual abuse, racial discrimination, police misconduct, and those suffering from workplace harassment and discrimination. Liberty made headlines in 2015, after holding the Contra Costa County School District accountable for a child sexual molestation case in which school officials were aware of the abuse and took no action. As the result of her victory, CAOC presented her with the “Street Fighter of the Year” award. Liberty has also received more than a dozen additional awards including being named a “Top 100 Attorney” by the National Academy of Personal Injury Attorneys, being named a “Top Forty Under Forty” by the National Trial Lawyers and inclusion in the list of “The Top Women Attorneys in Northern California,” by San Francisco Magazine.

As an award-winning employment lawyer, Lipinsky’s cases frequently include confidential settlements; however, his notable public successes on behalf of employees include securing more than $3 Million in an NASD Arbitration, which included $1.65 Million in monies received by virtue of voided promissory notes. This award represented one of the largest such awards in NASD/ FINRA history. Lipinsky also championed employees from a manufacturing company,

who sued their employer when they discovered a surveillance device in a workplace restroom. In Doe 1, et al. v. ABC Corporation Lipinsky secured a $6,500,000 settlement.

Lipinsky has earned prestigious recognition and awards including the California Employment Lawyers Association’s “Distinguished Litigation Results” Award in 2013 and has been named a “California Whistleblower Attorney of the Year” by Corp. International Magazine each year since 2014.

Lipinsky has also been named a CAOC “Streetfighter of the Year” Finalist, and a “Top 100 Trial Lawyer” by the The National Trial Lawyers.

Friendship, Respect as Foundation of the Firm

Beyond the shared vision of how plaintiffs deserve to be represented in California, Rizio, Liberty and Lipinsky point to their lasting friendships and sincere respect for one another as the foundation upon which the vision for the new firm was built.

“I have tremendous respect for Micha and Greg, as individuals, and attorneys. They are definitely great lawyers, but they are even better people,” says Lipinsky. Rizio seconds that emotion. “We have all been highly involved in CAOC over the years, and we share the same commitment to protecting the people of California. We are all in this together, like a family.

One of the reasons I’m so excited is that I couldn’t think of a better ‘brother’ and ‘sister’ to have than Daren and Micha.”

According to Liberty, “I’ve known Daren since high school, and Greg for at least a decade. When we began talking about partnering, it made so much sense. I didn’t just respect them as attorneys. I respect them as business owners, and I love who they are as people. We all focus on the harm done to the human being in our cases. Greg litigates on what happened to the person, what happened to the family dynamics as the result of an injury. Daren artfully litigates on how abuse by an employer, or by someone more powerful, impacts the individual. All three of us firmly believe that our job is to redirect justice after a harm.”

Micha S. Liberty

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Daren Lipinsky

Lipinsky and Rizio’s friendship has also stood the test of time, beginning when they litigated against one another years ago. As the self-proclaimed “old man in the firm,” Rizio recalls his first impression of Lipinsky being one of an “honest, hard-charging, young attorney.” The two have since worked together, with Rizio serving as Of Counsel to Lipinsky Law for years. However, both Rizio and Lipinsky agree that Liberty was the missing link to launching the new firm.

“Micha is exactly who we needed in order to meet the changing dynamics of the legal landscape in California. She’s a terrific lawyer, who is based in Northern California, she has had incredible success in fighting for injured victims, employees, and victims of sexual assault and harassment. We also know that some victims prefer working with a woman. There are sensitive issues in both personal injury cases and sexual assault and abuse cases that clients would rather talk with a woman about, and Daren and I recognize that. We knew in order for this to become the kind of law firm that would provide plaintiffs with everything they need, we needed Micha.”

United Front: A New Kind of California Consumer Firm

As Rizio, Liberty and Lipinsky usher in the New Year as a united front, they are most looking forward to what their team will be able to do for all of the people in California. “We are going to continue to work with legislature that will protect employees and consumers,” says Rizio. “And we will continue to take cases to court, when we can’t reach a fair settlement,” he says. “I’ll try almost any case.

But all good trial lawyers need teams. If we’re taking an employment case to trial, I need Daren beside me, and if we’re taking a sexual abuse, or discrimination case to trial, I need Micha beside me. This is how we will better serve the people of California—as a team of partners fighting for them.”

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To that end, the trio will also provide bilingual services. Moreover, it is the attorneys’ hope that more victims of sexual abuse and harassment come to find staunch allies and fearless advocates at Rizio Liberty Lipinsky. “When I went on my own 18 years ago, I lost cases because the clients wanted an ‘aggressive’ lawyer,” Liberty says. “I am one of the most aggressive lawyers I know, but clients still wanted a man. I think that has switched in the new #metoo landscape.

More sunlight is shining on these cases of abuse and harassment, and I’m thrilled to work on these cases with Daren and Greg.

We are all fluent in trauma, we all focus on the implications that abuse, assault, injury, or discrimination has had on that person’s life.”

Additionally, the attorneys agree that the pooled efforts, experience, skill, and reach will also enable them to take on more cases including wage and hour class actions.

“We are dedicated to reaching underserved populations, who have been taken advantage of,” says Rizio.

In the end, it’s not about what RLL as a new firm will do for its partners. It’s always going to be about the clients. “Joining forces is a natural fit for us,” says Lipinsky.

“Corporate and insurance defense will not be able to overpower us. We’re leveling the playing field.” As far as how the firm will grow and evolve over time? There are no concrete plans, or specific benchmarks that any of the attorneys feel compelled to reach.

“Our plan is to replicate what we’ve already done individually, but on a bigger scale, as a team,” Rizio says. “We just want every client who works with us to say, “Boy, those people love what they do. They really do care and they served us well. That’s all that we have ever wanted to do, and it’s what we’ll continue to do: serve those who need us.” n Contact Will Mullins Business Manager Rizio Liberty Lipinsky 2677 North Main Street, Suite 225 Santa Ana, CA 92705 888-292-8888 wmullins@riziolawfirm.com RizioLawFirm.com

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The Value of a STRONG NARRATIVE

by Dan Baldwin

A Huge Win for a Respected Physician’s Breach of Fiduciary Duty, Constructive Fraud and Legal Malpractice Case Proves the Value of a Strong Narrative Strategy for Keller/Anderle LLP

“Trials are a matter of inches. Provided you develop and follow a strong narrative and don’t allow yourself or your team to deviate from that narrative, you’re in a significantly stronger position for earning that ‘big win’ for your client,” says Jesse Gessin, Partner, of Keller/Anderle LLP.

T

he firm’s commitment to that philosophy proved successful in Howard v. Howard, which involved a combination of distinct subject matters: an elder abuse case and a legal malpractice/breach of fiduciary duty/constructive fraud case. The many challenges the attorneys faced included what is often called a “case within a case,” in which the matter being tried depends on a dissection of the underlying legal representation that led to the alleged malpractice. In Howard v. Howard the underlying legal matter involved highly complicated trusts and estates transactions.

The case was well underway when Keller/Anderle was brought in, a situation fairly common with this firm. “One of our advantages is that we’re very flexible and adaptable about taking on a case from the beginning or jumping into a case in the middle and quickly getting up to speed. We often discover that even when we arrive late in the game, we have an advantage because we quickly size up the best narrative, and that is a huge asset during trial,” says Jay Barron, Senior Counsel.

An Orthopedic Surgeon is Cut Out of His Estate The client was John Leroy Howard, M.D., a prominent Los 22

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Angeles physician who was a well-renowned orthopedic surgeon. Although now in his nineties, he maintains a medical practice as an expert in workman’s compensation cases. He had built up a sizable estate, primarily in real properties, which included a 34-unit apartment building in Pasadena, a Hawaiian villa, and other large tracts of ranch land in Hawaii.

In 2011, Howard’s daughter convinced him and his wife to change trusts and estates lawyers and hire a new accountant. He was 87 years old at the time and his wife was in her late seventies. Between 2012 and 2013 the new attorneys created complicated transactions that ended with the daughter receiving the apartment building and the properties in Hawaii. The Howard’s son was disinherited from the family trust as part of the process.

The changes involved two key document signings, one in December of 2012 and one in May of 2013—a total of 60 documents signed. Dr. Howard testified at trial that the documents were never explained to him and that he did not understand what had been done to his prized properties.

He requested a copy of his estate plan in 2016, but the attorneys initially refused at Mrs. Howard’s request.

When Howard finally received a copy of his estate plan, he realized what had been done without his knowledge. He couldn’t remember the transactions.

JOURNALS

FEATURED HUGE WIN

OF THE MONTH

2019

Jesse Gessin, Partner and Jay Barron, Senior Counsel at Keller/Anderle LLP

Mrs. Howard testified that she remembered details about the transactions and fervently supported their daughter who claimed the transactions were legitimate. The family was torn apart with Mrs. Howard moving out of their apartment and filing for separation. Dr. Howard sued his daughter and his former lawyers. Mrs. Howard filed a complaint to intervene in Howard’s civil case, siding with their daughter and the trusts and estates lawyers.

Starting Late, but Working to Finish First Keller/Anderle was brought into the case late when Howard’s former counsel was conflicted off the case after about eight months. Keller/Anderle accepted the case knowing it was likely to be tried on an expedited basis given that the client was ninetythree years old.

Gessin says, “Early on we developed a narrative theory and we stuck to it. Every aspect of trial (opening, direct exam, cross exam, exhibits, experts, closing, and so on) was anchored to the narrative. We stuck to our narrative and that’s one of the key factors of our success in such a big case.”

Barron added, “That’s a tremendous advantage in a trial.

We try to be pragmatic and goal-oriented. We focus on what’s important and what’s needed to advance our client’s position.

There are no half-measures with us. We evaluate what is important and what will help our client win at trial, and then we work to implement that strategy to the fullest.” After Keller/Anderle came on board, Barron immediately worked through the many lingering procedural and discovery issues, litigated multiple pending demurrers, pursued a motion for Attorney Journals Orange County | Volume 154, 2019

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trial preference (including filing a successful writ petition with the Court of Appeal), and prepared the case for well over a hundred hours of depositions that were taken in the following months.

The complex case presented many challenges. Dr. Howard had little memory of meeting with the attorneys or signing the documents. Howard’s wife testified that he was not only a participant in the meetings, but he was a driving force in the estate planning changes. His daughter and the trusts and estates attorneys agreed, stating there were many tax advantages to the transactions.

Challenges Complicate a Complex Case Those challenges presented themselves from the very beginning, when some prospective jurors expressed concerns about Dr. Howard signing documents and now claiming he could not remember signing the documents.

The practicalities of the litigants’ age also proved to be a challenge for the legal team. The two elderly litigants could only testify in the mornings for approximately two hours, so their examinations had to be conducted over multiple mornings.

Gessin says, “The age factor presented significant challenges.

Our client had deep memory issues. Although it was clear these transactions did not reflect his intent, there were a lot of ‘I don’t recall’ statements when asked about the circumstances or details. Understanding how to best present Howard’s testimony at trial was challenging. He was good in the mornings, sharp, but he often started dozing off in the afternoon.”

Barron says, “We informed the judge about the age issue and he allowed Howard to testify before lunch on the days he was scheduled to appear.” The attorneys made a serious effort to make sure he followed what was going on, taking time to get to know him, to get to know what he wanted.

“We learned that he had a specific type of Kona coffee he loved. Every morning we brought in a thermos of his favorite coffee and made sure he was comfortable. You want to make sure every client is engaged, comfortable with the process, and knows what’s going on throughout.”

The Court ruled before trial that both sides would be placed “on a clock,” with each side given thirty hours to present their case, including cross-examinations. With approximately twenty witnesses on the witness list and close to fifteen hundred exhibits on the exhibit list, planning out the examination of each witness was extraordinarily difficult.

There was no room for error. “We finished our case with nine minutes left on the clock,” Gessin says.

Four witnesses testified that Howard was advised by the attorneys before signing the documents.

To combat their testimony the Keller/Anderle attorneys focused on the circumstantial evidence that Howard could not have been advised about the transactions before signing the documents. “We did not want the fact that our client’s signature was on the documents to obscure the fundamental 24

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unfairness of the transactions—which left him with few assets in old age—and the complete failure by those closest to him to look out for his interests,” Barron says.

They argued to the jury that their client’s signature was immaterial because documents were never explained to him, never discussed in any detail with him, and he never had understanding of their effect.

The 60 documents signings occurred in two sessions. The firm methodically dissected the notary log book, emails, and attorney billing records to show that in December 2012 Howard was marched into a conference room and instructed to sign documents in an assembly line fashion without being explained what they were. For the May 2013 signing, they showed that the daughter was put in charge by the trusts and estates lawyers to get her parents’ signatures on the documents. There was no meeting or advisement with the attorneys in May 2013.

“We used the circumstantial evidence to prove that Dr. Howard was not advised about the documents he signed despite four people saying they witnessed him being advised before signing them. While the jury ultimately decided for Dr. Howard’s daughter, but against the former lawyers, this split verdict was still a ‘huge win’ for Keller/Anderle, but even more so for Dr. Howard. This multi-million-dollar case appears to be one of the largest legal malpractice jury verdicts in California in the last five years,” Gessin says.

“Dyed-in-the-Wool Trial Attorneys” Members of Keller/Anderle LLP have more than 400 jury trials among them with more than $925 million in verdicts and judgments. The practice focuses on high-stakes litigation, including commercial, intellectual property, securities, bad faith, white collar criminal defense, class actions, and entertainment/sports.

One of the firm’s strengths is the partnering of litigators with trial attorneys when bringing a case to trial. “The skill set needed to effectively litigate a case often differs from the skill set and presence of a strong trial attorney, but both are vital to winning at trial. Jesse and I have complementary strengths, backgrounds, and perspectives, and we worked to ensure those skills and instincts achieved the best result,” Barron says.

“We win cases because we’re dyed-in-the-wool trial attorneys,” Gessin says. n

Contact Keller/Anderle LLP 18300 Von Karman Ave., Suite 930 Irvine CA 92612 949-476- 8700 www.kelleranderle.com

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Asking “What Makes You Stay?”

How “Stay Interviews” Can Improve Employee Retention and Productivity

by Crystal Enekwa

H

iring interviews and exit interviews are a very common, if not completely unavoidable, part of any employer’s business operations. What is less known and less talked about, however, are stay interviews—even though they could be the most important interviews your organization could ever have. This begs the question: what is a stay interview?

A stay interview is simply asking your employees: “What makes you stay?” Their answers almost always prove a useful tool in employee management.

What It Means to Ask Why Employees Stay In essence, a stay interview is a conversation between a manager and a direct report employee which explores those things that foster the employee’s decision to stay with an employer. A stay interview can also cover more discrete issues like why an employee stays within a particular department, on a project, or with a particular manager or supervisor.

Typically formal, these interviews are intended to promote open and honest dialogue with the employee in order to identify what the employer is currently doing right and 26

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uncover issues that could cause an employee to decide to leave.

As a whole, stay interviews work to improve an employer’s organizational structure, develop more effective policies and procedures, and promote increased employee satisfaction, engagement, and retention.

Unlike a hiring interview where the goal is to figure out whether a candidate is a good fit for your company, or an exit interview where the goal is to learn the root cause for an employee’s decision to leave, a stay interview is intended to explore what it takes to keep an employee. The stay interview focuses on current employees that, as far as the employer knows, have not yet developed a reason to leave.

Many employers rely solely on exit interviews to fix employee turnover issues, but the information gained is often learned far too late to make a difference when it comes to the employee that has chosen to leave. In truth, it is very seldom that an employee who has made the decision to leave will give their employer a chance to change their mind. The stay interview occurs before an employee can get to this point and, if done properly, reduces the probability that the employee will get to the point of wanting to leave.

Why Ask “Why?”

When to Ask

One of the most compelling reasons for incorporating stay interviews is the positive impact that they can have on employee retention. There are high sunk costs associated with recruiting and hiring new employees. Once a company makes this investment in a new hire and cannot retain that employee, all of those resources are essentially wasted. If this cycle happens more than a couple of times a year, the costs become astronomical for an employer.

A stay interview is an important tool in staving off this kind of turnover because it provides employers with specific, relevant, and forward-facing information that enables them to retain practices that need to be retained and fix things that need to be fixed. By identifying this information, employers can increase employee job satisfaction, reduce turnover, and improve employee retention.

Another benefit of the stay interview is increasing employee productivity. “A happy employee is a productive employee,” is often quoted for a reason; that’s because it is true. One of the goals of the stay interview is that it promotes employee engagement and satisfaction.

More than the typical employee satisfaction surveys and questionnaires, stay interviews are more intentional, intimate, and interactive. For these reasons, they are usually more effective. Employees are more fulfilled when they work for an employer that cares about their needs and makes a marked effort to engage them in the improvement of company culture. With stay interviews, employers can assess the degree of employee satisfaction and engagement that exists in their company and can take immediate and relevant steps to address concerns in order to promote employee happiness and, in turn, productivity.

Again, the nature of the business will dictate the frequency with which stay interviews can and should be conducted. A good rule of thumb is at least once a year, but it can be more frequent if your business model or turnover history calls for it.

It is important to conduct these interviews around the same time for fairness and efficiency.

Before You Ask Why Even knowing all the benefits of a stay interview, it is important not to just jump into the process. Before conducting stay interviews, you need to ensure that you are implementing the best process for your organization. A few considerations to keep in mind:

Who to Ask The scope of employees with whom you should conduct stay interviews will generally depend on your organizational structure and business needs. While the focus is mostly on key, valued employees, you can choose to broaden the target group according to your needs.

A typical target group for stay interviews are those highly skilled, high-performing, and high-potential employees whose loss and replacement costs your business financially and otherwise. You can also focus on employee groups with the highest rates of turnover, as there may be unknown issues impacting that group.

Who Does the Asking?

It is usual for the stay interview to be conducted by a direct supervisor or manager. This is because an employee’s manager is usually the one that can most readily have an impact on the employee’s everyday working conditions. It is also usually a more familiar relationship, so the employee can be candid and provide your organization with honest and useful information.

It is important to note, however, that the existing nature of the relationship between a manager and employee should be taken into consideration. If there is already a negative or distrustful relationship, you should strongly consider the alternative of using a Human Resources manager or outsourcing to an external agency.

You’ve Asked … Now What?

Don’t just talk the talk. Your organization must have the intention of following through before you decide to implement stay interviews. Once you start asking employees about what makes them stay and what it would take to continue to keep them, they expect to see evidence that there is an intent to do the things that they have suggested. Failing to follow through only leaves disenchanted employees, which may leave you worse off than when you started.

Conclusion The choice to incorporate stay interviews as an entirely new way to engage employees is not an easy one or one that should be taken lightly. But because stay interviews have the potential to positively impact employee retention, happiness, and productivity, you should strongly consider adding them to your operations. However, you should not proceed without considering all the potential implications of implementing stay interviews. n Crystal Enekwa is an attorney at Fisher & Phillips LLP. Crystal counsels and represents employers before state and federal courts in a broad range of labor and employment matters including trade secret protection, retaliation, discrimination, harassment, employmentrelated torts, and wage and hour issues. Learn more at https://www. fisherphillips.com.

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The Golden Rules: A Primer on California’s New Professional Responsibility Rules

by Elisa Cariño

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alifornia overhauled its Rules of Professional Conduct effective November 1, 2018. This article highlights some impactful revisions for commercial litigators. However, all California lawyers should familiarize themselves with the sixtynine new and revised rules. The new rules affect all facets of practice—even at the client and business development phase. For example, Rule 1.18 imposes a duty of confidentiality on attorneys when meeting with prospective clients: attorneys cannot use or reveal any confidential information learned as a result of that meeting, “even when no lawyer-client relationship ensues.” Rule 8.4.1 still prohibits discrimination and retaliation “in representing a client, or in terminating or refusing to accept the representation of any client,” but now also prohibits law firms from making discriminatory hiring, firing, training, or compensation decisions.

Rule 8.4.1’s prohibitions are more expansive than its predecessor, Rule 2-400, and prohibit discrimination based on medical condition, genetic information, marital status, veteran status, “or other category of discrimination prohibited by applicable law, whether the category is actual or perceived.”

The new rules regime affects the daily operation of law firms.

For example, Rule 5.1 and Rule 5.3 describe the obligations for managerial attorneys who supervise subordinate attorneys and non-lawyers (e.g. “secretaries, investigators, law student interns, and paraprofessionals”). These rules are a significant departure from California’s prior professional conduct rules, which only referenced “the duty to supervise” in a brief comment to Rule 3-110.

California also has implemented the ABA Rules on conflictsof-interest. By way of example, Rule 1.7 replaces the checklist in former Rule 3-310 with a new “bright-line” test requiring an attorney to obtain informed written consent if his or her representation: (1) “is directly adverse to another client in the same or a separate matter” or (2) “will be materially limited by the lawyer’s responsibilities to or relationships with another client, a former client or a third person, or by the lawyer’s own interests.”

That said, per Rule 1.10, a law firm can now use ethical screens to cure problems created by Rule 1.7 conflicts – a practice that was discouraged under the old rules.

The new professional conduct rules also affect individual 28

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practitioners. For example, Rule 1.2.1 allows attorneys to counsel their clients about the “legal consequences of any proposed course of conduct.” This development is especially important if federal and state laws diverge, like on immigration-related matters. Of course, attorneys still cannot counsel a client to break the law.

California has added a new rule governing attorney conduct upon accidental receipt of a privileged writing. Rule 4.4 requires attorneys to promptly notify the sender about the accidental transmittal and “to refrain from examining the writing any more than is necessary” to determine privilege. While this is newly stated as a rule of professional conduct, the rule merely reiterates the standard approved by the California Supreme Court over a decade ago. See Rico v. Mitsubishi, 42 Cal. 4th 807, 817 (2007).

California’s rules now mirror the order and organization of the American Bar Association Model Rules of Professional Conduct (“ABA Rules”). While a majority of states have adopted the ABA Rules in their entirety, California retains its individuality and deviates from the ABA Rules in some critical ways. A notable example is Rule 1.6, by which California continues to impose the nation’s most rigorous duty of confidentiality. The ABA and many jurisdictions “impliedly authorize” several exceptions to an attorney’s duty of confidentiality, whereas California does not.

A California attorney may only disclose a client’s confidential information without informed consent when the attorney reasonably believes it is “necessary to prevent a criminal act” that will likely result in death or bodily harm. The attorney, however, must first make “a good faith effort to persuade the client” not to commit the act. She must also inform the client of her “ability or decision to reveal” the confidential information.

Ultimately, it is a lawyer’s professional responsibility to consult California’s revised rules and their accompanying comments— even if that requires some deliberate unlearning of the material you mastered while preparing for the bar exam or MPRE. n Elisa Cariño is a law clerk at Proskauer in the Litigation Department. Elisa graduated from NYU School of Law, where she interned for the Honorable Edgardo Ramos in the Southern District of New York and served as the Editor-in-Chief of the NYU Review of Law & Social Change. She also studied abroad in Buenos Aires for the NYU Law in Latin America program.

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Imputed Disqualification: Challenges of Suing Former Clients

by Esquire Deposition Solutions, LLC

T

he case of RehabCare Group East, Inc. v. Village Health Care Management, LLC demonstrates the importance of thorough and vigorous conflict of interest checks by attorneys to avoid representation overlap. This case illustrated the dangers of suing a former client and led a U.S. district court to disqualify the law firm that had been representing a plaintiff because the firm’s partners had previously represented one of the defendants. Nothing was able to overturn the ruling as neither the partner’s retirement nor screening could not save the representation overlap. A plaintiff suing multiple defendants is what initiated the case due to the alleging breach of contract.

Defendant Disqualifies Plaintiff’s Law Firm The defendant in the case recognized that its former law firm was the same firm now representing the party suing them. It filed a motion for imputed disqualification on the grounds of representation overlap between the plaintiffs. The defendant even provided the court with extensive proof of email correspondence between the attorney and the defendant.

The court examined the emails and found they did not reveal any sensitive or confidential information themselves.

However, the case turned in favor of the defendant when it was concluded the emails likely included conversations about negotiation and financial strategies.

During the time the court deliberated the defendant’s disqualification motion, the attorney, who previously represented the defendant and was the focal point of the motion, retired from practicing law. This further fueled the dispute between parties and the proper rule to apply under Rule of Professional Conduct 1.10.

Rule of Professional Conduct The Rule of Professional Conduct 1.10 has two subsections.

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Subsection A applies to currently associated lawyers, where subsection B applies to formerly associated lawyers. The district court ruled in favor of the stricter subsection Rule 1.10 A. The court’s main concern was that the defendant had conveyed information concerning negotiation and financial strategies to the primary attorney and that it would likely be relevant to the litigation and negotiation strategy of the current case. The defendant likely imputed this knowledge to the new attorney, therefore disqualifying him for representation overlap.

The court rejected both the argument that the primary attorney’s retirement affected the result and screening as a measure to save the representation. The Illinois federal magistrate judge recommended the attorney be disqualified from representing the therapy provider in its suit against the nursing facility, stating the fact the attorney works at a firm that had previously represented the nursing facility bars him from the litigation.

The Need for Strong Conflict Checks This case specifically highlights the importance of conflict checks before beginning litigation. Section leaders from the Ethics & Professionalism Committee of the ABA Section of Litigation warn that this is an issue that needs to be explored with the client at the very outset. This case is an example that litigators can look to offensively, not only defensively. It is in the best interest of attorneys and law firms to run robust conflict of interest checks as part of an initial conflicts system. Identifying party information and subject matter descriptions thoroughly enables the lawyer to do a comprehensive conflict check in order to avoid imputed disqualification. n Editorial provided by Esquire Deposition Solutions, LLC. Learn more at www.EsquireSolutions.com.

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