We are officially in a presidential election year now, even though it feels like the candidates have been campaigning since the last election. And with the election season upon us, corporations have a new twist on campaign-finance law to consider.

            In 2010, the United States Supreme Court held that corporations have essentially the same free-speech guarantees as do individuals under the First Amendment. Citizens United v. Federal Election Comm’n, 130 S.Ct. 876 (2010). Specifically, the Court struck down a federal statutory provision prohibiting corporations from using their general-treasury funds for electioneering communications. An electioneering communication is made via broadcast, cable or satellite within 30 days of a primary or 60 days of a general election, and which refers to a candidate for federal office. 2 U.S.C. §434(f)(3)(A).

            Citizens United is a nonprofit corporation that released a feature-length documentary titled Hillary: The Movie, which aimed to persuade its viewers that Hillary Clinton was unfit to serve as President. The corporation sought declaratory and injunctive relief against the Federal Election Commission. In its opinion, the Court held that corporations enjoy the same free-speech rights as do individuals, and that restrictions on their political-speech rights were subject to strict scrutiny. As the Court did not find that the government had a compelling interest in restricting corporate speech in this manner, it held unconstitutional the federal law prohibiting expenditure of general-treasury funds on electioneering communications. However, it upheld the federal disclaimer and disclosure requirements. These provisions require a disclaimer indicating who is responsible for the content of the communication, and the filing of a disclosure statement with the F.E.C. if the entity spends more than $10,000 on electioneering communications in a calendar year.

            If not for the United States’ organization as a federalist system, then Citizens United may have been the final word on all domestic elections. But the Montana Supreme Court seized on Citizens United’s focus on federal elections and decided the precedent did not apply to state and local elections. Western Tradition Partnership, Inc. v. Attorney Gen’l, 2011 MT 328 (Mont. 2011).

            If for no other reason than its recitation of Montana’s colorful political past, Western Tradition is worth a read. But for politically inclined corporations and their counsel, it is worth examination as a caution that the state of corporate electioneering communications law is far from settled in this country. The Montana Supreme Court held that Citizens United governed only federal elections, and thus was not controlling. Unlike the United States Supreme Court, Chief Justice Mike McGrath and the Western Tradition majority believed Montana had a compelling interest in limiting corporate expenditures on political speech. These compelling concerns tie back to extensive corruption and outside influence in Montana in the late 1800s and early 1900s, and the fear of its return.

            It is possible Western Tradition will be appealed and summarily reversed by the United States Supreme Court. But unless and until it is, corporations and the counsel who advise them are well advised to consider carefully the campaign-finance laws specifically applicable to themin state and local elections. 

This entry was posted on February 17, 2012 at 7:07 PM and has received 16 views. There are currently 0 comments. Print this entry.

Athough social media sites are a powerful marketing tool for attorneys, attorneys must always be cognizant of the implication of social media on ethics rules.  Below are five tips for avoiding ethical dilemmas through your use of social media:

1. Never blog about, reference, or discuss a client matter.  This ties into Rule 1.6 Confidentiality, which states that “A lawyer shall not reveal information relating to the representation of a client . . . .” 

1. Never offer legal advice.  This is a sure way to inadvertently create an attorney-client relationship.  You can create an attorney-client relationship on much lesser grounds than by a formal retainer agreement.  In fact, courts have even stated that if the client believes there is an attorney-client relationship, then it exists.  Avoid doling out legal advice online which could cause you to inadvertently create an attorney-client relationship. 

1. Don’t solicit clients through social media.  Rule 7.3 states that a lawyer shall not solicit professional employment through real-time electronic contact, unless the person contacted is a lawyer, has a family, close personal, or prior professional relationship with the lawyer.  This Rule applies to social media too.

1. Avoid ex parte communications.  Rule 4.2 and Rule 4.3 prohibit attorneys from communicating through social media with parties represented by other counsel and unrepresented persons.

1. Don’t call yourself a specialist.  Do not state “specializing in BLANK law” because it violates Rule 7.4.  Although you can communicate the fact that you practice in certain areas of law, you can only hold yourself out as a “specialist” under very narrow circumstances. 

This entry was posted on February 10, 2012 at 9:20 PM and has received 31 views. There are currently 0 comments. Print this entry.

Twenty Questions for a Witness

When interviewing a witness, considering asking him the following questions:

1) Are you represented by counsel?

2) Have you provided any one a statement?

3) If so, do you have a copy of the statement?

4) If not, would you mind requesting a copy and providing it to me?

5) Are you aware of any surveillance video, photos or recorded messages related to this case?

6) Are you aware of any insurance policies?

7) Are you aware of any contracts between any of the parties?

8) Have you spoken to anyone about this case?

9) Who else has any information about this case?

10) What documents do you have?

11) Can you provide me a timeline of the events?

12) Is there an incident report?

13) Has any third party (such as OSHA) investigated this case?

14) What would help to refresh your recollection?

15) Has anyone tried to influence your recollection or testimony?

16) Have any documents or items been lost, misplaced or destroyed?

17) Can you draw for me where the (witnesses, vehicles, etc) were at the time of the accident?

18) Do you agree (disagree) with the factual allegations in the Complaint?  Which ones?

19) What haven’t we covered?

20) If you remember anything else, will you call me and let me know?

This entry was posted on February 7, 2012 at 9:38 PM and has received 24 views. There are currently 0 comments. Print this entry.

Chef Ramsey’s Recipe for Better Lawyering

 Chef Gordon Ramsey has a television show titled Kitchen Nightmares where he goes into a failing restaurant and turns it around in a matter of days. What is amazing is that all these restaurants suffer from the same problems and he offers the same solutions, whether they are Italian or Mexican or Thai or whether they are high-end steakhouses or middle-of-the-road family style restaurants. And what is even more amazing is that the advice he offers these restaurateurs applies to any business or for that matter any law practice.

 Simplify. A restaurant can’t have 100 items on its menu and you can’t be an expert in everything. Find an area that you are passionate about, master it and become an expert on it.

 Find the passion. You became a lawyer for a reason. Search out that reason and reignite your passion. Many of the restaurants Ramsey encounters are just going through the motions and it shows in the food they serve. The same holds true in the work product we serve our clients.

Don’t cut corners. Often these restaurants are dying because they are using frozen foods and cheap ingredients. Ironically, by spending more they earn more through customer loyalty.

 Likewise, take the time to give your clients the best and invest in yourself to ensure you are on top of all the latest legal trends.

 Waste not. Gordon goes into one restaurant’s cooler after another to find piles of food going to waste. As lawyers, time is our most important ingredient. Spend it wisely by making the most of the opportunities to develop yourself and your practice.

 Be honest with yourself. When Ramsey first goes into a restaurant, he orders several items off the menu and then proceeds to give a blunt and honest assessment, often peppered with expletives because the food is so bad. Likewise, be brutally honest with yourself about your weaknesses and devise a plan on addressing them.

 Develop a name. Ramsey often goes into restaurants and helps them make a name for themselves for one item – the best meatballs, the best shepherd pie, or even the best gravy. Find the one area of law you can shine in and make yourself a name in that area.

 Get your hands dirty. Often the restaurateurs are shocked to see that their restaurants are serving frozen food, that their kitchens are dirty or that their customers hate the food or the service. Learn how your firm works. The business side, the marketing, the rainmaking, the day-to-day administration. The more you understand how your firm works the more prepared you are in making it and you better.

 Every week, Ramsey gives the same advice to the most diverse of establishments. Most of the advice is common sense and most translates into any business. Do yourself a favor and catch an old episode or two on Hulu. You’ll be surprised how much he will teach you.

This entry was posted on January 24, 2012 at 3:46 PM and has received 70 views. There are currently 0 comments. Print this entry.

             The idea that arbitration agreements are enforceable in consumer contracts is nothing new; Congress passed the Federal Arbitration Act in 1925. But the debate over mandatory arbitration agreements is gaining momentum, fueled by popular media and a recent Supreme Court decision.

            Hot Coffee, an HBO documentary released in 2011 and directed by former plaintiff’s attorney Susan Saladoff, examines perceived unfairness to consumers in mandatory arbitration clauses. The film rekindled the debate over several issues in tort reform, including mandatory arbitration clauses. The debate will surely go on, but counsel should focus on the current law surrounding mandatory arbitration agreements and newer issues surrounding them, including class arbitration.

            This past year, the Supreme Court issued its opinion in AT&T Mobility LLC v. Concepcion. In this case, the Concepcions bought cell phones and service from AT&T. Through a promotion, the Concepcions received free phones from AT&T, but later discovered they were charged $30.22 in sales tax for the phones. The service agreement between the Concepcions and AT&T provided for arbitration of any dispute between the customers and AT&T. It also required that the disputes be resolved in the customers’ individual capacities, and not as part of a class proceeding.

            The Concepcions brought an action against AT&T, which was consolidated with a putative class action. AT&T sought to compel arbitration, but the District Court denied its motion. The District Court found the mandatory arbitration clause unenforceable under California law that prohibits unconscionable and unlawfully exculpatory arbitration provisions. On appeal, the Ninth Circuit affirmed the District Court.

            Justice Scalia delivered the opinion of a sharply divided Supreme Court, reversing the Ninth Circuit and holding the mandatory arbitration clause enforceable. Scalia and the majority held that the FAA prohibited individual States from invalidating mandatory arbitration clauses that included a prohibition on class arbitration.

            The FAA’s policy objectives supported the majority’s holding. Scalia noted that class arbitration would be slower and less efficient than bilateral arbitration, defeating the FAA’s goal of informality and efficient resolution of disputes. Class arbitration under the American Arbitration Association’s rules requires a level of formality similar to the Federal Rules of Civil Procedure. And because arbitration awards are not subject to multilayered review, they present unacceptable risks to defendants.

            Counsel should be aware of the AT&T Mobility case. The Supreme Court’s holding that the FAA preempts state-law prohibitions on the enforceability of mandatory arbitration clauses requiring bilateral arbitration has broad implications for companies in the United States.  Bilateral arbitration is less costly and less risky than class arbitration and remains a viable option for corporations involved in consumer transactions. 

This entry was posted on January 13, 2012 at 2:08 PM and has received 0 views. There are currently 0 comments. Print this entry.

Five FaceBook Tips for Attorneys

Submitted by: Marisa A. Trasatti and Colleen K. O’Brien of Semmes, Bowen & Semmes

Attorneys often wonder how to use Facebook in order to market their business.  The following are five tips that you can use today to begin to market yourself on Facebook:

1. Know Your Privacy Settings.  Facebook is the site where professionals find that their social lives and their professional lives blurring.  If you plan to use Facebook professionally, carefully monitor your privacy control settings, including who is allowed to view your profile and tag you in photos, in order to maintain a professional image.  Social media is about being authentic and personal, but on this site especially, you must be observant of the image you are projecting.      

1. Groups.  Search for groups of professional organizations that are relevant to your practice.  If you search for a group and can’t find it, start a group yourself!  Any Facebook user can do so.     

1. Use the Newsfeed. Once you have decided that you will use Facebook for professional purposes, consider how frequently you would need to post status updates.  If you post regularly, it means that even if your friends are not visiting your page every day, they will see your status updates in their newsfeed. 

1. Promote events. Use Facebook to promote your firm or bar association’s next event by creating an event page.  Invite your friends, and let them invite their friends.  This is a great way to increase turnout.   

1. Share your stories.  Add Facebook’s Like bookmark link to your blogs, web pages, and articles so that readers can Like them and share them with their friends.  To take this a step further, you can either import blog posts into Facebook as “Notes” or you can post a status update linking to your blog.  Any of these strategies will widen your audience. 

This entry was posted on January 4, 2012 at 7:05 PM and has received 94 views. There are currently 0 comments. Print this entry.

Even though Wilford Brimley’s portrayal of James J.Wells, U.S. Assistant Attorney General, in Absence of Maliceis not a courtroom scene, it remains one of the truly great legal scenes in movie history. Brimley’s character appears late in the movie and steals the show from superstars Paul Newman and Sally Field. This Sunday marks the thirtieth anniversary of the film’s release and prompts reflection on the ongoing morality play occurring within the story

Anyone who has seen Absence of Malicecould not forget Wells’ gravely southern drawl and down home demeanor when he says:

“Tell you what we’re gonna do. We’re gonna sit right here and talk about it. Now if you get tired of talking here, Mr. Marshal Elving Patrick there will hand you one of them subpoenas he’s got stuck down in his pocket and we’ll go downstairs and talk in front of the grand jury. Elliot? Jim? Fine. All right, Elving, hand whichever one of these fellas you like a subpoena and we’ll go on downstairs and talk in front of the grand jury.”

It is not just his suspenders that give Wells instant credibility, it is also his laser like focus and targeted approach to get to the bottom of a botched government investigation that has been compounded by press leaks. We are immediately drawn to Wells’ dedication to the truth; his character appeals to our natural morality and sense of fair play. This scene comes at the end of a twisting plot that takes protagonist, Michael Gallagher, played by Paul Newman, on a journey of manipulation by third parties who have destroyed his life.

Gallagher’s odyssey begins when over-zealous federal prosecutor Elliot Rosen leaks false information about Gallagher to Megan Carter, a young, naive and impetuous reporter played by Sally Field. Rosen hopes that the news story, albeit false, alleging that Gallagher is the target of an investigation into the murder of a local union official will lead him to a real suspect. Megan seems to have no compunction about printing a story that has not been verified. Megan, like many people, does not learn from her mistakes. She continues putting out unverified stories and heaping more and more misery upon Gallagher, who quickly learns that absent actual malice, there is no legal recourse.

Realizing that he must do something, Gallagher takes Mark Twain’s advice not to start a war with the newspaper, which he knows “buys ink by the barrel.” Instead, he decides to get even; and with his own clever deceptions, orchestrates the events that culminate in the meeting with Assistant Attorney General Wells.

Near the end of the movie, Megan admits that there are no rules to direct when she should or should not print a story. When pressed by Wells to reveal the source for one of her stories she finally defaults to her own sense of right and wrong. Ultimately, she refuses to reveal additional sources in order to avoid further harm coming to others. Conversely, there are a myriad of rules relating to products liability law. We have statutes, case law, rules of civil procedure, local Federal Rules, product safety rules and regulations, and, most importantly for lawyers, the Rules of Professional Conduct.

So what has this to do with products liability and what the heck is Abnormal Malice? The gist of Abnormal Malice was best expressed by Assistant Attorney General Wells when he said to the assembled cast of guilty parties:

“Now we’ll talk all day if you want to. But, come sundown, there’s gonna be two things true that ain’t true now. One is that the United States Department of Justice is goin’ to know what in the good Christ – e’scuse me, Angie – is goin’ on around here. And the other’s I’m gonna have somebody’s ass in muh briefcase.”

This is a seminal moment for any lawyer; it is the instant when you know that you are getting the truth, and when you know “somebody’s ass” is in your briefcase. In today’s litigious society, lawyers often have to guard against abusive tactics aimed at putting our clients in precarious positions for the purpose of leveraging unreasonable settlements. We think of underhanded tactics as Abnormal Malice: attempts to direct the court and fact finders away from the truth through discovery abuses, frivolous motions, sanctions, and biased press coverage.

The current economic and political environments have created a high level of distrust for Corporate America. Americans are very unsettled due to the Great Recession, TARP Bailouts, high unemployment and Congressional gridlock. Occupy Wall Street is just one example of the level of frustration and distrust. Nevertheless, it is incumbent upon us as attorneys to represent our clients to the best of our ability in the relentless pursuit of truth. We do this through zealous but fair advocacy to achieve a just result for our clients. Knowing the rules of the road is essential to the advocate seeking judicial decisions based upon the law and the facts on the record. Most cases do not go to trial, but fair and reasonable settlements are based on a good understanding of where the truth lies and the chips will fall.

Wells sums up the procedural essence of the search for truth: “Wonderful thing, a subpoena.”

In the last 30 years, the information age has all but killed newspapers. Instead, we are deluged 24/7 by information and misinformation. Even beyond the news channels and talk radio, we are just now seeing the potential for adverse impact on juries by social media outlets such as Google, Facebook and Twitter. As lawyers we must be ever vigilant against the omnipresent threat that Abnormal Malice may improperly influence the jury. At the end of the day, our juries are the factor that most distinguishes our civil justice system as the best in the world. In fact, our civil justice system is the best tool we have for seeking the truth, and it is all that protects us from the mayhem of no rule of law.

As lawyers we have a duty to make sure that our system of civil justice is fair and accessible to all. The citizens of our country and our potential jurors must have faith that our system works. They must believe that our courts are level playing fields and that all the players are abiding by the rules and being held accountable for any Abnormal Malice. Our courts must be seen as the place where things are made right in the eyes of the law. Assistant Attorney General Wells clarifies our expectations quite nicely:

“We can’t have people go around leaking stuff for their own reasons. It ain’t legal. And worse than that, by God, it ain’t right.”

This entry was posted on December 19, 2011 at 3:12 PM and has received 84 views. There are currently 0 comments. Print this entry.

OK, now you have your I-Pad and you've completed all the free versions of Angry Birds.  You've now decided to load some apps that will help you in your legal practice.  What are the MUST HAVE apps for lawyers doing the kind of work we do?

Dan

This entry was posted on December 19, 2011 at 2:42 PM and has received 142 views. There are currently 6 comments. Print this entry.

Consider adding a QR (“quick response”) code to your business card.  A QR code is a two-dimensional bar code that is easily scanned using a mobile phone that has a QR code scanning application (more and more folks are downloading these aps). QR codes have become very popular in magazines and flyers.  The code will convert into a link, and the user will be redirected to that link instantly.  I just added two codes to my business card – one for my firm’s website and one for this blog. It’s a conversation piece and is a means to have others taker a closer look at your business card and your firm’s website.  You can go to http://qrcode.kaywa.com/ and generate a QR code for your website (and a second for your blog or other site), and forward them to your printer to incorporate into your business cards. It’s easy to do and separates your business cards from others (until everyone starts using them).

This entry was posted on December 15, 2011 at 5:33 PM and has received 239 views. There are currently 1 comments. Print this entry.

The internet has become the place where folks go in search for free stuff.  We used to pay for newspapers.  Now we get news free on Google news or MSNBC online.  We used to pay subscription fees for forums like AOL.  Today, it would be heresy to charge for Facebook or Twitter.  We used to pay to rent movies.  Now, we can download shows and movies for free on Hulu.  Even when we pay subscriptions for unlimited movies, we complain about the monthly fee.  We can watch music videos on Youtube, communicate on Skype, and send “mail” via e-mail, all for free.  As consumers, we  have grown  accustomed to getting more and more services for free.   When marketing your practice, you have to keep in mind that the average consumer has become acclimated to expect more for less.  And so when dealing with potential clients understand that they are more than ever, looking for value, because they’ve received so much in their social pursuits for so little.  Keep those expectations in mind, and possibly use them to your advantage by offering free information online through your website or blog and possibly free downloadable e-books, apps, or webinars.  This growing sense of entitlement affects us all, and you should keep it in mind when meeting client expectations.

This entry was posted on December 15, 2011 at 5:31 PM and has received 171 views. There are currently 0 comments. Print this entry.