membership aba groups resources for lawyers … · by richard schenkar lawyers are not always...
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July 2012
http://www.americanbar.org/publications/gpsolo_ereport/2012/july_2012.html[7/17/2012 10:53:17 AM]
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Publications > GPSolo eReport > 2012
JULY 2012
FEATURED ARTICLE
What Lessons Can Small FirmsLearn From the Recent Bankruptcyof Dewey & LeBoeuf?By Richard Schenkar
Lawyers are not always comfortable withnumbers. However, running a law office requiresthat you know at least a few key items.
PRACTICE MANAGEMENT
Law Office Management: Work Smarter, Not HarderBy Holly Hohlbein
Summer can be just the motivation you need when it comes tomaking your law office more efficient.
TECHNOLOGY AND REVIEWS
Top Ten Ways to Generate Ideas for Your BlogBy Larry Bodine
You don't need time to develop ideas for your next blog post (if youfollow these tips).
TechNotes: Tools and Tips for Faster, Better WritingBy Wells Anderson
Save time creating more effective documents and emails by usingthese utility programs and tips for working with text and formatting.
LAW TRENDS
State Responses to HIPAABy Melanie D. Bragg
With a better understanding of the overhaul of the nation's health-care system, you can help your clients navigate their way throughthe remodeling plan.
Organizational Advice for the Commercial LitigatorBy Cristen Sikes
Feel good about yourself: set up a daily routine, and implementmethods so that you never miss another deadline.
Mergers and Acquisitions: The BasicsBy Matt Swartz
What are the laws that govern mergers and acquisitions? Find out
2012 2011
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June 2012FEATUREDSTORIES
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July 2012
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here.
Client Rapport and Ethical ConsiderationsBy L. Rush Hunt, Mike McCauley, and Patricia Ann Day
Find out how to avoid multiple representation and ethically managesituations invoving client competency when practicing elder law.
General Overview of the Criminal Justice ProcessBy Amber L. St. Clair
This book excerpt will help you gain a primary understanding ofwhat to expect at each stage of the criminal justice process.
May 2012FEATUREDSTORIES
The Basics ofFlash Mob Law
Trying theSpousal SupportCase
The Court-Ordered CasePlan
April 2012FEATUREDSTORIES
That PersonReally IrritatesMe!
RespectingCulturalDifferences
March 2012FEATUREDSTORIES
Why You ShouldBe Podcastingand How
Macnotes: TheKing Is Dead(Almost): LongLive the New TopCat, MountainLion!
ProductNote:Flexible CMS andPerformanceDashboard Keyto WebsiteSolution
About GPSolo eReport
GPSolo eReport is a monthly electronicnewsletter of the ABA General Pratice, Soloand Small Firm Division that combineselements of Solo, The Buzz, GPSolo TechnologyeReport, and GPSolo Law Trends & News. Itspurpose is to to put clear, comprehensive,cohesive, useful, and timely information intothe hands of Division members.
Visit the ABA General Practice, Solo andSmall Firm Division
More publications from the GeneralPractice, Solo and Small Firm Division
Subscriptions
A subscription to GPSolo eReport is includedwith your $45 annual dues payment to theGeneral Practice, Solo and Small Firm Division.You can join the Division by visiting the ABAmembership website or calling the at 800-285-2221.
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Thomas Campbell, Managing EditorAmerican Bar Association321 N. Clark St.Chicago, IL 60654-7598Phone: 312-988-5990Fax: 312-988-6135
Kimberly Anderson, DirectorAmerican Bar AssociationGeneral Practice, Solo and Small Firm Division
Jeffrey M. Allen, Editor-in-ChiefGraves & AllenOakland, California
What Lessons Can Small Firms Learn From the Recent Bankruptcy of Dewey & LeBoeuf? | General Practice, Solo and Small Firm Division
http://www.americanbar.org/publications/gpsolo_ereport/2012/july_2012/lessons_small_firms_bankruptcy_dewey_and_leboeuf.html[7/17/2012 10:53:37 AM]
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What Lessons Can Small Firms Learn From theRecent Bankruptcy of Dewey & LeBoeuf?Vol. 1, No. 12Richard Schenkar
Richard Schenkar is an attorney who writes and speaks on online research technique, computersecurity, and law office management. His column “Practical Resources” appears monthly in theWashington State Association for Justice Trial News. He edits the Washington Lawyer PracticeManual chapter on “Law Office Management.” His blog is online athttp://theinfoconnection.blogspot.com; his website is online at http://www.richardschenkar.com,and his email address is [email protected].
Foster a firm culture that thrives on efficiency.Relate compensation to productivity.
Dewey & LeBoeuf is a New York-based law firm with worldwide connections that filed for bankruptcyon May 28, 2012, with approximately $315 million owed to more than 5,000 creditors and with $13million in cash and $255 million in accounts receivable.
The cautions to small law firms framed by the Dewey & LeBoeuf bankruptcy include 1) cultivate afirm culture that is open to new ideas and change; 2) know your numbers and understand theirsignificance; and 3) relate compensation to production.
Firm CultureDewey & LeBoeuf was formed from the merger of two large law firms—one of which had Thomas E.Dewey as a named partner. He is familiar to many as a former candidate for president of the UnitedStates. The firm organized itself as one of insiders that served insiders. That attitude—and the greatsuccess that attitude brought—created an insular culture that made it difficult to consider changes ornew ideas. The way the firm grew—especially in later stages—was by lateral transfers withsubstantial financial guarantees to the transferring lawyers. That is good for the transferring lawyersuntil clients stop paying bills. Then a battle starts for whatever crumbs are left. The success of thefirm kept people from asking questions about what could be done to practice law more effectively.An irony is that the firm’s own website touted its capability to shape solutions for its clients (but,perhaps, not for itself):
Based on decades of experience in corporate law, governance, restructuring andlitigation, Dewey & LeBoeuf has assembled a next generation capability to achieveclients’ goals . . . Our multidisciplinary approach enables us to develop special tools thatallow directors and management to avoid “not knowing.”
Know Your NumbersOne of the big problems lawyers have is that we are not always comfortable with numbers. It may
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have been one of the subjects that we really sought to avoid. But running a business—and thepractice of law is a business—requires a certain awareness of numbers. If you are numericallychallenged, you do not have to admit it—here are some sources you can use to get comfortable withthe numbers you need. Merrill Lynch Pierce Fenner & Smith offers help in the form of two onlinedocuments-”How to Read a Financial Report” and “Understanding Financial Reports.” Both of thesedocuments explain each line in a financial statement and the significance of some ratios betweencertain items on balance sheets and income statements that are accepted indicators of financialhealth.
Key ratios are important in financial analysis of business. When they are used in comparison withsimilar ratios of similar businesses, they suggest occurrences significant to competitive intelligencespecialists.
There is an explanation of key business ratios on the Dun and Bradstreet website and a one-pageguide available from the US Small Business Administration’s Service Core of Retired Executives(SCORE).
Ratios themselves for various lines of business are available online on http://www.bizstats.com andon the MSN Money Central site.
The two most valuable assets in a law firm are the firm’s reputation and the firm’s client list. Withthose, the firm can always build possible connections and client relationships as long as the firm’sreputation is positive and the clients are happy (or, at least, positive about the firm). They are notliquid or easily measured, but they are reflected in the objective measures that accountinggenerates.
Relate Compensation to ProductionThe classic law firm with its tiered partnership tends to award senior partners for their interest in thelaw firm, rather than the production of legal work. This is undoubtedly in deference to the years ittakes to build a positive reputation that generates current business. But financial guarantees,pension payments, and other financial commitments create compensation that may bedisproportionate to income actually produced. When cash flow stops, the crisis begins.
A small firm can avoid the problems of Dewey & LeBoeuf by cultivating a firm culture that is open tonew ideas, adverse comments, and new processes; by being aware of the vital statistics of the firm;and by paying people (even you) by what they produce.
About GPSolo eReport
GPSolo eReport is a monthly electronicnewsletter of the ABA General Pratice, Soloand Small Firm Division that combineselements of Solo, The Buzz, GPSoloTechnology eReport, and GPSolo Law Trends& News. Its purpose is to to put clear,comprehensive, cohesive, useful, and timelyinformation into the hands of Divisionmembers.
Visit the ABA General Practice, Solo andSmall Firm Division
More publications from the GeneralPractice, Solo and Small Firm Division
Subscriptions
A subscription to GPSolo eReport is includedwith your $45 annual dues payment to theGeneral Practice, Solo and Small FirmDivision. You can join the Division by visitingthe ABA membership website or calling the at800-285-2221.
More Information
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GPSolo eReport Editorial Board Members
Contact Us
Thomas Campbell, Managing EditorAmerican Bar Association321 N. Clark St.Chicago, IL 60654-7598Phone: 312-988-5990Fax: 312-988-6135
Kimberly Anderson, DirectorAmerican Bar AssociationGeneral Practice, Solo and Small FirmDivision
Jeffrey M. Allen, Editor-in-ChiefGraves & AllenOakland, California
Law Office Management: Work Smarter, Not Harder | General Practice, Solo and Small Firm Division
http://www.americanbar.org/publications/gpsolo_ereport/2012/july_2012/law_office_management_work_smarter_not_harder.html[7/17/2012 10:53:55 AM]
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Law Office Management: Work Smarter, Not HarderVol. 1, No. 12Holly Hohlbein
Holly M. Hohlbein is a collaborative family law attorney, mediator, and consultant in Kirkland,Washington, where she has been in solo practice for the past 16 years. Prior to law school, shewas a production planner for Hewlett-Packard in Silicon Valley, where she was first introduced tothe concept of working smarter, not harder. Visit her on the web at http://www.hhattorney.com.
Find out how to apply the 80/20 rule to streamline your practice.Learn how to use your staff more creatively.
It can be a tedious to manage your law practice, particularly in the summer. The weather has finallyimproved, and everyone you know is going on vacation to some exotic location you can’t afford, evenif you could take time away from the office. There’s no need to lose heart, however: Summer can bejust the motivation you need to “do more with less” when it comes to your law office. In addition toallowing you to enjoy some summer fun, creating some free time for yourself will also help youmanage your office more efficiently all year long. Here are some time-saving strategies to you toconsider.
Apply the 80/20 RuleThe 80/20 rule in business (also called the Pareto principle) states that 80 percent of effects stemfrom 20 percent of causes. The father of the Pareto principle, Joseph Juran, named the phenomenonafter Vilfredo Pareto, a 19th century Italian economist who discovered that 20 percent of thepopulation held 80 percent of the wealth. Juran extrapolated this principle to explain how 80 percentof production errors were made by 20 percent of the workers. The implications for efficiency arecompelling. Using this principle, if a business focused only on improving the accuracy of those 20percent of the workers (rather than on all workers), they would spend far less resources in return fora much higher gain. Subsequent studies have proven again and again that this phenomenon holdstrue in a vast array of applications and circumstances. You can use the 80/20 rule to analyze youroffice for ways to improve your business efficiency. Are 80 percent of your client complaints comingfrom 20 percent of your case load? What do those 20 percent have in common, and how can youminimize taking them on as clients in the future? Is 80 percent of your revenue coming from 20percent of your practice areas? Get rid of the other 80 percent of your practice areas and focus onwhat you do most profitably. Is 80 percent of your sense of satisfaction and achievement comingfrom 20 percent of your activities? Ditch the stuff you don’t like and expand the work you enjoy.
Think Creatively About Utilizing StaffManaging a small law office means that you and your staff are probably already wearing multiplehats. For example, your legal assistant may also be the receptionist, or you may be your ownbookkeeper in between practicing law. In order to do more with less, try thinking “outside the box”when it comes to staff and tasking. Look for the “hidden talents” of your employees and prospective
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new hires. Perhaps your paralegal is a whiz with computers; if so, then combining “webmaster” withhis or her job description might offer a break from the tedium of interrogatories, while freeing you upto do more legal work. Sequencing tasks is another idea; rather than have a full-time legal assistant,you might consider an employee who acts as a legal assistant three days a week and billing clerk forthe other two.
Plan AheadLawyers are famous for operating mostly in crisis mode, running from one emergency to the next.Whether it’s court deadlines, unhappy clients who want their work yesterday, or those unavoidable-yet-unbillable admin tasks, lawyers are rarely ahead of their workloads. Despite the pressure ofrunning a busy law practice, however, it is possible to do some advance planning that will help youaccomplish more with less effort. One strategy is to prioritize before you dive in. Time managementexperts extol the benefits of thoughtfully planning your workload rather than reacting to it on a case-by-case basis. Taking a few minutes to prioritize before you begin will allow you to reap the benefitslater by doing “first things first.” Another plan-ahead strategy is to set aside specific time blocks inyour day that are appointment-free, maybe even phone and email-free. This builds in time forunanticipated emergencies without throwing you off schedule on the other projects you were in themiddle of when the urgent matters arose.
Take Wise Advantage of TechnologyAlthough new technology often involves some initial investment of time and money, hugeproductivity and time saving gains can be made with careful selection of your technology tools.However, it’s important to assess the individual needs of your office (perhaps even applying the80/20 rule described above) before jumping in the deep end. Beware of investing heavily in fancycomputer systems or software tools that will not be fully utilized by your staff, are too complex to beeasily learned, or function poorly for your specific needs. Your best resource may be your existingcomputer tech, who probably reads the current software reviews and has memorized the variousfeatures and benefits of the programs and applications that you might need.
Multitasking Is for LosersJust in case you haven’t heard, multitasking is out. The myth that it’s productive to do multiple taskssimultaneously effectively has been busted. It turns out that giving your undivided attention to onething allows you to do that one thing much more efficiently. Prioritizing work will help you focus (see“Plan Ahead,” above). So will having a quiet space without interruptions for you and youremployees: trade your open door policy for a closed door policy a few days a week and see yourproductivity skyrocket.
Make Time by Taking Time: For YourselfYes, you read that right. Studies show that those who rest well and take time for recreationalpursuits are more productive than those who don’t. When we are chronically stressed out andoverworked, our bodies and minds protest by shutting down. Our judgment is impaired and ourthinking is clouded, not to mention our bad attitudes and the resulting effect on staff andinterpersonal relationships. The good news is the effects of stress and overwork can easily bereversed. Laughter, fun, and exercise all produce endorphins that counteract stress hormones andallow your mind and body to function at peak efficiency. So treat yourself to that nap in the sun;read a fun book; go for a walk, run, or bike ride. Have a staff meeting outside with a picnic lunch.Learn to make balloon animals and give them to random strangers. Maybe even take a vacation.Believe it or not, you’ll be doing your law office a big favor. When you are back in the office, chancesare you’ll accomplish more in a shorter time, and with a better attitude. You and your staff will behappier and more productive, leaving time to enjoy the full bounty of summer, and the rest of theseasons of the year.
About GPSolo eReport
GPSolo eReport is a monthly electronicnewsletter of the ABA General Pratice, Soloand Small Firm Division that combineselements of Solo, The Buzz, GPSoloTechnology eReport, and GPSolo Law Trends& News. Its purpose is to to put clear,comprehensive, cohesive, useful, and timelyinformation into the hands of Divisionmembers.
Visit the ABA General Practice, Solo andSmall Firm Division
More publications from the GeneralPractice, Solo and Small Firm Division
Subscriptions
A subscription to GPSolo eReport is includedwith your $45 annual dues payment to theGeneral Practice, Solo and Small FirmDivision. You can join the Division by visitingthe ABA membership website or calling the at800-285-2221.
More Information
Copyright information
Advertise with us
GPSolo eReport Editorial Board Members
Contact Us
Thomas Campbell, Managing EditorAmerican Bar Association321 N. Clark St.Chicago, IL 60654-7598Phone: 312-988-5990Fax: 312-988-6135
Kimberly Anderson, DirectorAmerican Bar AssociationGeneral Practice, Solo and Small FirmDivision
Jeffrey M. Allen, Editor-in-ChiefGraves & AllenOakland, California
Top Ten Ways to Generate Ideas for Your Blog | General Practice, Solo and Small Firm Division
http://www.americanbar.org/publications/gpsolo_ereport/2012/july_2012/top_ten_ways_generate_ideas_blog.html[7/17/2012 10:54:14 AM]
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Top Ten Ways to Generate Ideas for Your BlogVol. 1, No. 12Larry Bodine
Larry Bodine is Editor in Chief of Lawyers.com. He has offices in Chicago and New Jersey. His blogis at http://blogs.lawyers.com.
Learn how always to have material for a blog post.Find out how to post by joining ongoing social media discussions.
At a recent webinar I hosted about online marketing for lawyers, I had a chance to talk to severalattorneys about blogging. An effective blog, ideally linked to a polished social media profile, can bethe anchor for a successful social media presence.
When discussing social media and blogging, I notice that many lawyers do not think they have thetime to write a blog. I practiced law myself, and I know how demanding transactions and litigationare. But the more I hear this concern, the more I think they’re really telling me something else:lawyers don’t think they have time to develop ideas for a blog.
It’s easy to write a piece when you are propelled by inspiration. The blog post writes itself. So wherecan a busy lawyer find new topics to actively write a blog? Here is a collection of ideas I suggest youtry. You don’t need to use all of them—just find one that sets you in motion.
1. Feed Yourself InformationBy setting up Google alerts, setting up RSS feeds from new websites, and subscribing to e-Newsletters sent out by magazines, you can receive a flood of information. The idea is to generatemore information than you need, so that instead of searching for a topic, you can pick from amongseveral that have been delivered to you.
2. Ask Yourself, “What Is My Target Client’s Biggest Concern?”Think of the person you are writing for and discuss their deepest concern. What is the biggest worryfor parents contemplating a divorce? Patients who got cancer from defective drugs? Drivers injuredat dangerous intersections?
3. Research What’s Trending on Social MediaWhat are people chatting about? You can get a live real-time sense of Facebook and Twitter bysearching with bing.com/social. Rather than start a new topic on your blog, it’s easier to find outwhat people are already talking about, and simply join in.
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4. Ask a Question Based on a Current EventBase your question on a legal event involving a celebrity, because clients everywhere are hooked onthe problems of celebrities. Famous people are a goldmine of blog posts because they commitcrimes, go bankrupt, get divorced, execute contracts, pursue litigation, and have will contests.
5. Make a PredictionOn the Lawyers.com blog, we predicted that former Senator John Edwards would walk. Sure enough,he was convicted of nothing, and we promoted our amazing foresight. Actually, it didn’t matterwhether we were right or wrong, because the point was to get people talking. If we had been wrong,we would have invited readers to share our dismay and fill our blog with comments.
6. Create a Top Ten ListWe all owe a debt of thanks to David Letterman for popularizing this writing formula. As a result,clients everywhere are mentally programmed to read top ten lists. In fact, you are reading one now.See how effective it is?
7. Create a Regular FeatureThe idea is to duplicate what a newspaper columnist does. Identify a topic that you’ll focus onregularly, and select a particular day of the week that you’ll write about it. This way you will build afollowing, as we have done with our popular Editor’s Choice: Jury Awards Edition, which appearsevery Friday.
8. Respond to Comments on Your BlogYou should overcome your bugaboo about turning on the commenting feature on your blog. I knowof no reported case or ethics opinion where a lawyer created an unwanted attorney-clientrelationship by allowing comments on a blog. Happily, every blogging program I know of allows theauthor to “moderate” comments, by deciding which ones to make public. Comments open the doorfor you to interact with your readers and build profitable relationships.
9. Write a Sequel or Follow-Up to a Past PostNow is the time to check your blog analytics to see which particular posts attracted the most pageviews. Go with the flow and write more articles about topics that your readers already like.
10. Recruit a GuestWho says you have to do it all by yourself? I personally welcome guest blog posts, and I edit themto fit our style. Simply announce on your blog that you seek guest posts, or call up a client,colleague, or online celebrity to write for you. Many hands make light work.
To get blogging tips emailed to you for free, subscribe to Best Practices in Lawyer Blogs athttp://bit.ly/JU2zZW. It’s LexisNexis newsletter that I edit for attorneys. You can see the latest issueat http://bit.ly/MlQLGK.
About GPSolo eReport
GPSolo eReport is a monthly electronicnewsletter of the ABA General Pratice, Soloand Small Firm Division that combineselements of Solo, The Buzz, GPSoloTechnology eReport, and GPSolo Law Trends& News. Its purpose is to to put clear,comprehensive, cohesive, useful, and timelyinformation into the hands of Divisionmembers.
Visit the ABA General Practice, Solo andSmall Firm Division
More publications from the GeneralPractice, Solo and Small Firm Division
Subscriptions
A subscription to GPSolo eReport is includedwith your $45 annual dues payment to theGeneral Practice, Solo and Small FirmDivision. You can join the Division by visitingthe ABA membership website or calling the at800-285-2221.
More Information
Copyright information
Advertise with us
GPSolo eReport Editorial Board Members
Contact Us
Thomas Campbell, Managing EditorAmerican Bar Association321 N. Clark St.Chicago, IL 60654-7598Phone: 312-988-5990Fax: 312-988-6135
Kimberly Anderson, DirectorAmerican Bar AssociationGeneral Practice, Solo and Small FirmDivision
Jeffrey M. Allen, Editor-in-ChiefGraves & AllenOakland, California
TechNotes: Tools and Tips for Faster, Better Writing | General Practice, Solo and Small Firm Division
http://www.americanbar.org/publications/gpsolo_ereport/2012/july_2012/technotes_tools_tips_faster_better_writing.html[7/17/2012 10:54:32 AM]
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TechNotes: Tools and Tips for Faster, Better WritingVol. 1, No. 12Wells Anderson
Wells H. Anderson ([email protected]) works with small firms and solos via virtual meetingsto implement practice management, timekeeping and billing applications. Through his website,www.activepractice.com, he regularly publishes technology tips and articles and hosts a monthlywebinar open to all.
Save time creating more effective documents and emails by using these utility programs andtips for working with text and formatting.
Wouldn’t you like to write in less time? Here is an assortment of great writing tools and tips to speedup the writing process. Do you write emails off and on all day long? Do you prepare presentations,agreements, legal arguments, or articles? Read on!
Text Substitution ProgramsThe tool that can improve your writing productivity the most is a text substitution program.
A text substitution program takes abbreviations you enter and automatically expands them intowords, phrases, or entire blocks of boilerplate text. For example, you can type “plm” and theprogram will replace it with “Please let me know if you have any questions. I will be happy to answerthem.” This sort of program may also be called a text expansion or text replacement program.
The speed with which you write increases markedly when you use your abbreviations often. You caninsert long words, names, phrases, and paragraphs by typing abbreviations you have entered andmemorized. You can also pop up a list of abbreviations, organized into folders, and select the oneyou want to use.
Reduced wear and tear on your wrists and arms is another benefit of using a text substitutionprogram. You may also find you get an emotional lift from entering just a few characters and seeinga larger amount of text appear without your having to type all of it!
PhraseExpress has proven to work better than other text substitution programs. PhraseExpress is notfree, but it is well worth the cost. It is a tall order to be compatible with every other program whereyou might want to enter text. PhraseExpress works with all of the many, many programs we haveinstalled over the last five years. It even works as expected with remote access services such asGoToMyPC.
Click here to find freeware alternatives to PhraseExpress. However, it is doubtful you will find onewith so many well-implemented features. One option that is especially attractive in PhraseExpress isthat you can create abbreviations that expand immediately after the last character is typed. Withmost programs, you are required to type either a hotkey or any one of several convenientterminating characters such as space, period, comma, or return. That approach has advantages, butit can also be limiting.
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Multiple Clipboard ManagersThe essence of serious writing is rewriting. When you need to copy or move around paragraphs,blocks of text, or website links, use a multiple clipboard program as your tool. Microsoft Office has amultiple clipboard feature, but it can be confusing and works only with Office programs.
Ditto is a free, open source utility program that manages multiple clipboards for you. Ditto gives youaccess via a selectable hotkey or from a system tray icon. It works well for both keyboardenthusiasts and mouse devotees. On multiple computers, Ditto allows shared access to capturedclipboards across a network. It has received the best reviews by those comparing the alternative freeclipboard managers.
My favorite text replacement program, PhraseExpress, includes an excellent multiple clipboardmanager as a built-in feature at no extra cost.
More Readable EmailsYou want people to pay attention to the content of your emails. But, like you, they have a longstream of them to plow through. Do your clients, associates, and yourself a favor: Make your emailsmore readable while saving time.
How do you make your emails easier and faster to read? Use the Bullets button in your Outlooktoolbar. Why?
Bullets break the monotony of line after line of text.Bullets focus the recipient’s attention on the key points you make.Points that stand out in bullets are grasped faster.
To draw even more attention to your points, click on the right edge of the Outlook Bullets button toselect a different shape for your bullets.
If you need the recipient to respond to several questions, use the Numbering button. Why?
1. The recipient is less likely to overlook one of your questions if they are numbered.2. When responding, the recipient can easily refer to your questions by number.
Don’t be afraid to use bold or italics to provide some emphasis instead of wracking your brain foradjectives and adverbs. What might be inappropriate in a brief, article, or book may be just the rightway to help your email recipient understand what is especially important. Press Ctrl-B to beginbolding your text and Ctrl-B again to stop. Ctrl-I works the same way for italics.
Copy and PasteEven if you are a diehard mouse user, master the Ctrl-C and Ctrl-V shortcut key combinations forCopy and Paste, respectively. They will save you time again and again.
Writing often requires synthesis: taking text from multiple locations and combining it into new, usefulforms. You can speed up your writing process by learning to use two hotkeys (shortcuts or keycombinations): Ctrl-C for Copy and Ctrl-V for Paste. You can use these hotkeys in almost allMicrosoft Windows programs to copy selected text from one place and paste it into another.Highlight the words you want to copy. Press Ctrl-C. Place the cursor in the new location and pressCtrl-V to paste the words.
Ctrl-C for Copy is easy to remember. For Ctrl-V, think of the little “V” as a wedge that pushes wordsinto the current location of the text cursor.
Dictation With SpeakWriteYou may be a very fast typist, but dictation can allow you to record a burst of thought faster thanyou can type. It also reduces the muscle fatigue that results from using a keyboard.
SpeakWrite transcribes your dictation into word processing documents economically. I have not runacross another company that is so easy to work with and that offers these different options forcreating and submitting dictation:
1. Transfer files from a digital recorder via the web;2. Dial their 800 number, give your phone number and password, and start dictating;3. Use a smartphone app to record and submit your dictation;4. Dictate to a SpeakWrite program installed on your computer;5. Fax a handwritten or printed document.
Within three hours, a SpeakWrite typist transcribes your dictation into word processing documentsand emails them to you. Concerned about security? SpeakWrite adheres to HIPAA’s privacy andsecurity policies. All of the typists are screened, trained in security and confidentiality policies andprocedures, and located in the United States or Canada.
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GPSolo eReport is a monthly electronicnewsletter of the ABA General Pratice, Soloand Small Firm Division that combineselements of Solo, The Buzz, GPSoloTechnology eReport, and GPSolo Law Trends& News. Its purpose is to to put clear,comprehensive, cohesive, useful, and timelyinformation into the hands of Divisionmembers.
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Thomas Campbell, Managing EditorAmerican Bar Association321 N. Clark St.Chicago, IL 60654-7598Phone: 312-988-5990Fax: 312-988-6135
Kimberly Anderson, DirectorAmerican Bar AssociationGeneral Practice, Solo and Small FirmDivision
Jeffrey M. Allen, Editor-in-ChiefGraves & AllenOakland, California
TechNotes: Tools and Tips for Faster, Better Writing | General Practice, Solo and Small Firm Division
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Pricing for this dictation service is a 1.25 cents per word, or 1.5 cents if you want a trained legaltranscriptionist to do your transcription. There are no other costs. Turnaround time is advertised asabout three hours, but in my experience the service is usually faster. Founded by a lawyer, no otherservice matches SpeakWrite’s excellent quality and service. Contact the company at 800-828-3889or www.speakwrite.com.
Research With LastPassLastPass automates the process of logging into password-protected websites. Do you jump around todifferent websites where you have accounts when doing research? LastPass can both save you a lotof time and spare you from having to remember and type various logins and passwords.
With LastPass you use one login and super-secret password to store and protect all your passwordsand critical private information. No one can access the contents of your account without your masterpassword. Your master password is not known to LastPass administrators, and they cannot recoveror restore it.
The service is available in free and premium ($1.00 per month) versions. The free version is fullyfunctional but displays an advertisement on the side of the screen. The premium version supportsuse on mobile phones.
Mindmaps and FlowchartsA picture is worth a thousand words. One diagram makes a big difference when you need to explaina procedure with multiple options or outcomes.
But creating diagrams is time-consuming. With the right mindmap or flowchart application, you canbring clarity to a complex topic in minutes.
Mindmaps have much in common with outlines: they allow you to divide a subject into topics(branches), subtopics, and short text entries. But mindmaps also let you draw ad hoc connectionsfrom one subtopic to another one in a different branch.
A mindmap can assist you in organizing a writing project quickly before you begin. The time youdevote to organizing, prioritizing, and sorting reduces the overall time for your project. Your writinggoes much faster when it is well organized.
MindManager stands out as the best PC-based mindmapping program, but I have switched to a webapplication (Software as a Service) named MindMeister. I find that MindMeister is less complex andfaster without sacrificing important capabilities. It has the added advantages of all web-basedapplications: it is available on any computer, and there is no need to install anything.
Flowcharts serve a narrow but crucial niche for lawyers. Whenever you need to plan a sequence ofevents or a procedure that involves more than a few steps, think of using a flowchart. A flowchartenables you to spot shortcuts or omitted parts of the process you are working with.
For flowcharts I used to use AllClear. I still love its design, but the $340 cost for PC-based softwareis a disincentive even with the price break for upgraders. I have switched to LucidChart, anotherweb application. The free version lets you create many charts with up to 60 objects per chart, buthas some limitations. The basic version at $3.33 per month has more features and no limit onobjects.
If nothing else, don’t miss the Hey Jude video on the LucidChart Example page. It is fascinating,entertaining, and instructive.
Organize With Headings and StylesIn any writing that has multiple parts, you can use headings to organize the content for both youand your readers. The headings make it easier for your readers to work their way through thematerial.
Microsoft Word has shortcut keys to convert a line of text into a heading. Press Ctrl-Alt-1 forHeading 1, Ctrl-Alt-2 for Heading 2, or Ctrl-Alt-3 for Heading 3. Each heading can have differentformatting. You configure the formatting by right-clicking on a heading in the Style area of the menuribbon.
ConclusionWhether you are writing a quick email or a long legal document, these tips can save you time andmake the process of writing easier. If you have a favorite tech tip, please let me know. Yoursuggestion could make it into a future column and be most helpful to other readers.
State Responses to HIPAA | Section of Family Law | General Practice, Solo and Small Firm Division
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State Responses to HIPAAVol. 1, No. 12Melanie D. Bragg
Melanie D. Bragg, Bragg & Associates, is a general practitioner with an emphasis on mediation andarbitration in Houston, Texas. She is also president of Legal Insight, a company founded in 1993to provide legal education on a variety of subjects to healthcare professionals, lawyers, business,industry, and the public. Her HIPAA programs have been viewed by national student audiencessince 2003. She is a fellow of the following organizations: American Bar Association, ABA YoungLawyers Division, Texas Bar Foundation, Houston Bar Foundation, and the Houston Young LawyersAssociation Foundation. She is currently active in the ABA General Practice, Solo, and Small FirmDivision, serving on the Publications Board.
From HIPPA for the General Practitioner, Chapter 6
Learn how to help clients navigate through the the national health-care system remodelingplan.
Where Lawyers Come InThe question you may ask is, “How much do I, as a lawyer, need to know?” Or you may say, “I amnot a healthcare lawyer. What does this have to do with me?” Whether you are a probate, personalinjury, or patent lawyer, it is likely you will run into a HIPAA issue at some point in your practice.
As lawyers, we need to review our state statutes and the HIPAA law to see whether state or federallaw applies. We may need to get an extra subpoena or a specific court order, but we will find a wayto prove up and defend our cases. And I’m sure some of you will have fun finding HIPAA’s loopholesand creating more litigation.
With a better understanding of the reasoning behind and the purposes for the overhaul of thenation’s healthcare system you should be able to help clients navigate their way through thisnational health-care system remodeling plan.
Quicksand, Quagmire, or Quantum Leap?HIPAA is vast, complex, and multifaceted. Your level of knowledge about it can lead to threedifferent conditions: If you know next to nothing, the first time you are faced with a HIPAA issue, youwill feel like you are in over your head, as though you just walked into quicksand; or, if you know alittle bit about it but not enough, you will find yourself confused and in a quagmire; or, if you breakit down to its simplest elements and make the effort to learn the law and its requirements, it willmake sense. You will feel comfortable when you explain it to your clients. You will be able to dealwith HIPAA-related issues that arise in your practice. And you will have a quantum leap experience.
HIPAA has been interpreted in a variety of ways according to statute and local practice. Health-careproviders have implemented a variety of schemes to achieve satisfactory HIPAA compliance.
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Some states formed task forces to go through their state laws relating to medical information, advisethe legislature on which laws were more stringent, and make recommendations on those that neededto change. Many state legislatures have responded and changed their laws to trump HIPAA. Thefollowing are some issues the Texas task force recognized as being recurring issues in the law.
Written AuthorizationsAlthough HIPAA requires a written authorization before PHI is disclosed, most states also have lawsthat provide the same protections. However, many state laws use different terms, such as “consent,”“consent form,” “release,” “written release,” “written consent,” and “waiver.” The Texas task forceconcluded that state laws should use uniform language to refer to written authorizations to facilitatecompliance with HIPAA.
Authorization forms were discussed in Chapter Two, and the elements for a valid authorization arefound in 45 C.F.R. § 164.508(c)(1). HIPAA requires that the authorization contain certainstatements, such as the individual’s right to revoke the authorization. State authorization formsmust take into account both HIPAA and state laws.
Regarding written authorizations, several courts have stated that in the absence of a HIPAA-compliant authorization, a covered entity may still respond to a court-ordered disclosure. In Rosalesv. City of Bakersfield, Victoria Rosales brought a civil rights survival action against the BakersfieldPolice Department following the shooting death of Gabriel Angel Garcia. The police shot Garciaduring a confrontation on February 21, 2004, and Rosales filed the both as administrator of theestate and individually. During discovery, the defendants presented the plaintiff’s treatingpsychiatrist with a subpoena duces tecum demanding that the psychiatrist produce medical records.The psychiatrist refused to honor the subpoena because he had not been provided with a HIPAA-compliant authorization. After three attempts to induce the plaintiff to sign a HIPAA-compliantauthorization, the defendants then filed a motion to enforce the subpoena under Federal Rule of CivilProcedure 45(c)(2)(B). The plaintiff did not object to the motion.
HIPAA authorizes a covered entity “to disclose private health information in judicial or administrativeproceedings in response to an order of a court.” The Rosales court found for the defendants, statingthat HIPAA permits disclosure in a proceeding if it is “in response to a subpoena, discovery request,or other lawful process . . . if the party seeking the information either notifies the patient . . . ormakes a reasonable effort to secure a qualified protective order.” The court found that thedefendants’ efforts to secure authorization from the plaintiff provided “written notice to theindividual.” That, combined with the plaintiff’s failure to object to the motion to enforce thesubpoena, led the court to hold that there was no basis for the psychiatrist to withhold disclosure ofhis medical records.
Request for AccountingIn addition, under HIPAA, an individual has a right to an accounting from a covered entity of certaindisclosures made by the covered entity during the previous six years. Again, commentary from theOffice of Civil Rights (OCR) indicates that this six-year requirement was selected to dovetail with theother six-year retention requirements:
In the final rule, we provide that individuals have a right to an accounting of theapplicable disclosures that have been made in the six-year period prior to a request foran accounting. We adopt this time frame to conform with the other documentationretention requirements in the rule. We also note that an individual may request, and acovered entity may then provide, an accounting of disclosures for a period of time lessthan six years from the date of the request.
OCR also indicated that the accounting requirement is designed to provide a mechanism to alertindividuals that there may be a problem with their records that justifies the filing of a complaint:
The provision serves multiple purposes. It provides a means of informing the individualas to which information has been sent to which recipients. This information, in turn,enables individuals to exercise certain other rights under the rule, such as the rights toinspection and amendment, with greater precision and ease. The accounting also allowsindividuals to monitor how covered entities are complying with the rule. Though coveredentities who deliberately make disclosures in violation of the rule may be unlikely tonote such a breach in the accounting, other covered entities may documentinappropriate disclosures that they make out of ignorance and not malfeasance. Theaccounting will enable the individual to address such concerns with the covered entity.
The absence of an explicit records-retention period in the Privacy Rule is exceedingly difficult toreconcile with the enforcement rights of HHS and the rights of an individual to a meaningfulaccounting. In declining to adopt a retention period for the documents underlying an accounting,HHS took note of variation in state retention laws, as well as the cost to some entities of increasingthe retention period.
HHS declined to balance the financial burden of a records-retention period against the interests ofenforcement and, more important, the interests of individual citizens in a meaningful accounting of
About GPSolo eReport
GPSolo eReport is a monthly electronicnewsletter of the ABA General Pratice, Soloand Small Firm Division that combineselements of Solo, The Buzz, GPSoloTechnology eReport, and GPSolo Law Trends& News. Its purpose is to to put clear,comprehensive, cohesive, useful, and timelyinformation into the hands of Divisionmembers.
Visit the ABA General Practice, Solo andSmall Firm Division
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A subscription to GPSolo eReport is includedwith your $45 annual dues payment to theGeneral Practice, Solo and Small FirmDivision. You can join the Division by visitingthe ABA membership website or calling the at800-285-2221.
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Thomas Campbell, Managing EditorAmerican Bar Association321 N. Clark St.Chicago, IL 60654-7598Phone: 312-988-5990Fax: 312-988-6135
Kimberly Anderson, DirectorAmerican Bar AssociationGeneral Practice, Solo and Small FirmDivision
Jeffrey M. Allen, Editor-in-ChiefGraves & AllenOakland, California
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the disclosures of their protected health information. This exercise was properly left to statelegislatures.
In sum, HIPAA’s six-year records-retention requirements expressly apply to certain records describedin the Privacy Rule, not to PHI generally. But a shorter state law retention period for records ordocuments containing PHI arguably would be an obstacle to the right to an accounting of disclosuresunder HIPAA.
DecedentsAnother recurring issue identified by the Texas task force is in the area of decedents. HIPAA providesthat a deceased individual has privacy rights, but allows disclosure in certain instances. Coveredentities can disclose a decedent’s PHI to law enforcement officials if necessary to determine thecause of a suspicious death. A coroner or medical examiner can obtain PHI to identify a deadperson, to determine the person’s cause of death, or to perform any other duties authorized by law.Funeral directors can get PHI if necessary to carry out their duties. An organ procurementorganization can get PHI for the purpose of facilitating organ, eye, or tissue donation andtransplantation, and for research under strict conditions.
In some states, the common law provides that the right to privacy is purely personal and terminatesupon the death of the person whose privacy is at issue. Each state must reconcile its common lawand statutory law to determine whether HIPAA or state law is more stringent.
In In re Estate of Broderick, the Kansas Court of Appeals evaluated a decedent’s right to privacy.The niece of Esther Broderick, deceased, opposed the probate of Broderick’s will. The niece allegedthat Broderick was mentally incompetent when she executed the will and filed a motion for theproduction of Broderick’s medical records from the nursing home where the deceased had resided,citing 45 C.F.R. §164.512(e)(2004) for authorization. The niece asserted that the records werenecessary “to assess and document” decedent’s mental condition at the time that the will wasexecuted. The district court denied the motion, acknowledging that the nursing home coulddisclose the records under an order from the court, but found that in this case the court had noauthority to issue such an order. The niece appealed the decision, but the Kansas Court of Appealsheld that her motion for production did not meet any of the four authorized methods for obtainingmedical records. Permissible methods for obtaining records include the following:
1. Provide the covered entity with a subpoena, discovery request, or other lawful process withouta court order accompanied with a statement and documentation to the covered entity that theparty made reasonable efforts (or a good-faith attempt to do so) to notify the individual whosehealth information is protected.
2. Provide the covered entity with a subpoena, discovery request, or other lawful process withouta court order accompanied with the party’s satisfactory assurance to the covered entity thatreasonable efforts were made to secure a qualified protective order.
3. The covered entity may release the protected information “in response to a lawful process”without any assurances from the requesting party if the covered entity makes reasonableefforts to provide notice to the individual that meets the requirements of the first method orseeks a qualified protected order that meets the requirements of the second method.
4. The covered entity may release PHI “[i]n response to an order of a court or administrativetribunal, provided that the covered entity discloses only the protected health informationexpressly authorized by such order.”
Costs for CopiesAnother area with a wide range of differences in state law and administrative rules is that of copyingrecords. For many years, patients did not even really believe they had the right to get their ownrecords. Some providers could dampen patients’ desire to get their own medical records by chargingcosts that were prohibitive. A covered entity can charge a reasonable fee that covers only the cost ofcopying, including the cost of supplies and labor; postage, if mailed; and preparing an explanation orsummary of the protected health information if the explanation or summary is agreed to by theindividual ahead of time.
In drafting the final rule, HHS stated that, for enforcement purposes, “[f]ees for copying and postageprovided under state law, but not for other costs excluded under this rule, are presumedreasonable.”
In Webb v. Smart Document Solutions, LLC, the U.S. Court of Appeals for the Ninth Circuit addressedwhether the term “individual” used in the HIPAA regulation encompassed the law firm when it actedas the client’s agent, thereby qualifying the law firm to obtain medical records at the individual’slower rate. The defendant, Smart Document Solutions, charged more for providing copies topatients who requested their records through agents, such as personal injury lawyers.
HIPAA regulations restrict fee limitations to requests made by individuals and concretely defines“individual” in a way that excludes agents. The regulatory history was clear that the regulations didnot intend for private attorneys to receive the reduced fees. Under HIPAA, an individual has the rightto obtain copies of his medical records for a reasonable, cost-based fee, while third parties who seekthe same records may be charged at a higher rate.
This case is unusual, because HIPAA itself does not provide a private right of action for individuals to
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bring suit, but in this California case, the attorneys are using a violation of HIPAA to support theirsection 17200 claim. California Business and Professional Code section 17200 grants a private rightof action for unfair competition. The attorney’s claim was based on the alleged unlawful and unfairconduct of Smart Document Solutions in violating HIPAA.
In implementing HIPAA, HHS has determined that, except in limited circumstances, “an individualhas a right of access to inspect and obtain a copy of protected health information about theindividual in a designated record set, for as long as the protected health information is maintained inthe designated record set.” Upon an “individual[’s] request[ ]” to inspect or obtain his or herrecords, the covered entity may impose a reasonable, cost-based fee, provided that the fee includesonly the cost of:
(i) Copying, including the cost of supplies for and labor of copying, the protected health informationrequested by the individual;
(ii) Postage, when the individual has requested the copy, or the summary or explanation, be mailed;and
(iii) Preparing an explanation or summary of the protected health information, if agreed to by theindividual as required by [the regulation].
The question raised by Webb is whether designated agents, such as personal attorneys, can beconsidered the “individual” in order to obtain the reasonable, cost-based fee. HHS defined“individual” as “the person who is the subject of the protected health information.”
The court interpreted this to mean that HIPAA restricts the fee limitations to requests made by theindividual. The court further explains that “individual” is concretely defined in a way that excludesothers acting on that individual’s behalf. The court applied various canons of construction thatsupported this conclusion. Under the plain meaning canon, HIPAA clearly favors Smart DocumentSolutions. The canon of statutory construction, expressio unius est exclusio alterius, furthersupports Smart’s argument.
HHS has provided for one situation in which another person may be treated as the individual: whenthat person is authorized to make health-care-related decisions for an individual:
As specified in this paragraph, a covered entity must, except [in limited circumstances],treat a personal representative as the individual for purposes of this subchapter. . . . Ifunder applicable law a person has authority to act on behalf of an individual who is anadult or an emancipated minor in making decisions related to health care, a coveredentity must treat such person as a personal representative under this subchapter, withrespect to protected health information relevant to personal representation.
Application of this canon suggests that because HHS explicitly defined “individual” to encompass“personal representatives,” it was fully capable of delineating an even broader definition of the term.
Despite this, the attorney urged the court to read the term “individual” to include authorizedattorneys, because such an interpretation would be more consistent with the purpose of HIPAA. Theplain-meaning canon can be overridden where there is “some indication of the regulatory intent thatovercomes plain language . . . [as is] referenced in the published notices that accompanied therulemaking process.”
The Webb court was not persuaded that regulatory intent overcomes plain meaning. The plaintiff didnot provide the court with any evidence that the drafters intended “individual” to mean “anythingother than ‘the person who is the subject of the protected health information,’ and, when applicable,that person’s personal representative.”
In the proposed rules, HHS explicitly considered adopting a broader definition of “individual” thatwould have included legal representatives but, in the final rule, ultimately decided against it.Additionally, in 2002, HHS clarified that “the Rule . . . limits only the fees that may be charged toindividuals or to their personal representatives.”
The attorney’s final attempt to argue that the definition of “individual” should include the individual’sattorney asserted that California agency law grants an attorney the authority to do all necessary actsfor a case. He argued that HIPAA did not preempt California agency law because it “imposesrequirements, standards, or implementation specifications that are more stringent” than HIPAA’s.“More stringent” laws are defined, inter alia, as those that “permit[ ] greater rights of access” for the“individual who is the subject of the individually identifiable health information.”
The plaintiff argued that California agency law provided the individual with greater rights of accessby allowing attorney-agents to obtain the records at the limited cost and, therefore, trumps theHIPAA regulations to the extent they require a contrary interpretation. The court decided thatCalifornia law did not support the plaintiff’s claim.
Having found no justification for the plaintiff’s claim within HIPAA or California law, the court refusedto grant the plaintiff the right to obtain copies at the reduced cost guaranteed to individuals.
Records RetentionAnother area where numerous state laws vary is in the area of records retention. There is norecords-retention requirement for PHI in HIPAA. But covered entities must keep their own policies
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and procedures for any “action, activity, or designation . . . required by this subpart to bedocumented, [and] maintain a written or electronic record of such action, activity, or designation.”HIPAA also requires a covered entity to keep records as necessary to ensure that regulatoryagencies can investigate and enforce compliance. HIPAA specifies that these records may includePHI:
A covered entity must permit access by the Secretary during normal business hours to its facilities,books, records, accounts, and other sources of information, including protected health information,that are pertinent to ascertaining compliance with the applicable requirements of this part 160 andthe applicable standards, requirements, and implementation specifications of subpart E of part 164 ofthis subchapter.
Statute of LimitationsHIPAA provides for a six-year statute of limitations upon the Office of Civil Rights (OCR) to bring anaction against a covered entity for noncompliance. Commentary indicates that HIPAA’s six-yeardocumentation period was selected to complement the six-year statute of limitations on OCRinvestigations: “We established the retention period at six years because this is the statute oflimitations for the civil monetary penalties. This rule does not apply to all pharmacy records, but onlyto the documentation required by this rule.”
Authorized RepresentativesHIPAA defines personal representatives as persons who have the authority under applicable law tomake health-care decisions on behalf of adults or emancipated minors, as well as parents, guardians,or other persons acting in loco parentis, who have the authority under applicable law to makehealth-care decisions on behalf of unemancipated minors.
Persons who are authorized under state law to make health-care decisions on behalf of otherindividuals will also be personal representatives under HlPAA.
In In re Berg, the Supreme Court of New Hampshire analyzed the privacy rights of unemancipatedminors. In Berg, the court was asked to settle a dispute between a divorced mother and father overvisitation rights. The parents had joint custody, but the children resided with their mother. Thechildren did not always visit their father as scheduled because they either refused or their motherrefused to allow them. The children complained of their father’s inappropriate conduct as the reasonthey did not want visitation. The mother arranged for each child to have counseling with a therapistto address their concerns with their father’s inappropriate conduct.
The father filed a motion alleging the mother was interfering with his relationship with the childrenand in contempt for violating the visitation order. The mother responded with a motion to modify thevisitation schedule. The father requested that the children’s therapists produce their records andnotes, arguing that he would find evidence of the mother’s interference. The therapists refused,claiming that such disclosure would not be in the best interest of the children.
The guardian ad litem for the children moved to have their records sealed. The mother agreed, butthe father objected, so the court denied the motion. The children’s guardian ad litem appealed.
The court acknowledged that for unemancipated minors, “a parent must . . . be treated as theminor’s personal representative, so long as the parent, under applicable law, has the authority to acton behalf of the minor in making decisions related to health care.” However, the court furtherexplained that a covered entity “may not disclose or provide access to protected health informationabout an unemancipated minor to a parent if doing so is ‘prohibited by an applicable provision ofState or other law, including applicable case law.’” In this particular case, New Hampshire statelaw prohibited the father from accessing the children’s records without a court order. The courtreasoned further that section 164.502(g) permits a covered entity to withhold information, even ifdisclosure is not prohibited by state law, if the covered entity determines that it is not in the bestinterest of the children. Thus HIPAA does not provide parents with an absolute right to access theirchild’s records.
In Med 4 Home, Inc. v. Geriatric Services of America, the defendant sought to bring the claim infederal court, alleging that the HIPAA implications demanded the claim have federal questionjurisdiction. The plaintiff filed a motion to remand to state court because the claim did not presenta federal question.
The U.S. district court for the District of Arizona found that since HIPAA does not provide a privatecause of action and the plaintiff’s claims all arose under state law, federal jurisdiction was notappropriate. The court did not say that no HIPAA-related claims arise under federal law. Instead, thecourt applied the test derived from Grable & Sons Metal Products, Inc. v. Darue Engineering &Manufacturing to ascertain whether HIPAA permitted federal jurisdiction.
In Grable, the Supreme Court held that federal-question jurisdiction may still exist absent a privateright of action. The Court explained that federal-question jurisdiction “will lie over state law claimsthat implicate significant federal rights.” To determine whether a state law claim implicatessignificant federal rights, the court must answer whether “a state-law claim necessarily raise[s] astated federal issue, actually disputed and substantial, which a federal forum may entertain withoutdisturbing any congressionally approved balance of federal and state judicial responsibilities.” After
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examining Grable, the district court stated that jurisdiction exists if:
1) federal issues are essential to the claims,
2) there is substantial federal interest in resolving such issues, and
3) a federal forum may entertain the state-law claims without disturbing the balance offederal and state responsibilities.
Grable, 545 U.S. at 314. In the case before the district court, the plaintiff’s complaint alleged thatthe defendants stole information that the plaintiff had purchased and used that information to theiradvantage.
HIPAA was implicated because the information allegedly purchased/stolen was confidential patienthealth-care information. The court reasoned that even though the information subject to litigationwas protected by HIPAA, the claim was a traditional tort case—one business claimed that anotherbusiness stole confidential and proprietary information. HIPAA perhaps added an extra layer ofprotection to the information, but it was not enough for the court to find a “substantial federal claim”or a “federal interest” in resolving the claim. The court found that the claims did not arise underfederal law.
Medical InformationIn White v. Arkansas, James Al White was convicted of rape, fourth-degree sexual assault, andexposing another person to Human Immunodeficiency Virus (HIV) after having sexual intercoursewith his girlfriend’s 15-year-old daughter and her friend. At the trial, White had filed a motion toexclude testimony by a nurse practitioner that White had tested positive for HIV three years prior tothe trial. White argued that HIPAA does not permit disclosure by his health-care provider.
The Arkansas Supreme Court explained that the “purpose of HIPAA is to increase privacysurrounding medical records; however . . . [HIPAA] provides that nothing within the Act is to beconstrued to limit a state’s authority to investigate crimes.” The court held that “the trial of aperson accused of rape is a legal process qualifying for disclosure.”
Endnotes
1. REPORT OF THE OFFICE OF THE ATTORNEY GENERAL OF TEXAS: PREEMPTION ANALYSIS OF TEXAS LAWS RELATING TO THE
PRIVACY OF HEALTH INFORMATION AND THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND PRIVACY RULES
(HIPAA) (Nov. 1, 2004).
2. See, e.g., TEX. HEALTH & SAFETY CODE ANN. §§ 44.072–44.073 (Vernon 2001); 47.008 (Vernon Supp.2004-05); 81.103 (Vernon 2001); 161.0073 (Vernon Supp. 2004–05); 611.004; 611.006; 773.092-093 (Vernon 2003); TEX. OCC. CODE ANN. §159.005 (Vernon 2004).
3. 45 C.F.R. § 164.508(c)(2).
4. Rosales v. City of Bakersfield, 2006 U.S. Dist. LEXIS 22382 (E.D. Cal. Apr. 12, 2006).
5. 45 C.F.R. § 164.512(e)(1)(i).
6. 45 C.F.R. § 164.512(e)(1)(ii).
7. Rosales, 2006 U.S. Dist. LEXIS 22382 (E.D. Cal. Apr. 12, 2006).
8. 45 C.F.R. § 164.528(d).
9. 65 Fed. Reg. at 82,744.
10. Id. at 82,462.
11. 65 Fed. Reg. 82,743, 82,749–50.
12. 45 C.F.R. § 164.502(f).
13. 45 C.F.R. § 164.512(f)(4).
14. 45 C.F.R. § 164.512(g).
15. Cox Texas Newspapers v. Wooten, 59 S.W.3d 717 (Tex. App. – Austin 2001, pet. denied); Moorev. Charles B. Peirce Film Enters., Inc., 589 S.W.2d 489 (Tex. Civ. App. – Texarkana 1979, writ ref ’dn.r.e.).
16. In re Estate of Broderick, 34 Kan. App. 2d 695, 697 (Kan. Ct. App. 2005).
17. Id.
18. Id.
19. In re Estate of Broderick, 34 Kan. App. 2d 695, 703-704 (Kan. Ct. App. 2005).
20. 45 C.F.R. § 164.512(e)(1)(ii)(A), (iii)(A).
21. 45 C.F.R. § 164.512(e)(1)(ii)(B).
55
56
57
58
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22. 45 C.F.R. § 164.512(e)(1)(vi).
23. 45 C.F.R. § 164.512(e)(1).
24. 45 C.F.R. § 164.524.
25. 65 Fed. Reg. 82,557.
26. Webb v. Smart Document Solutions, LLC, 499 F.3d 1078, 1080 (9th Cir. Cal. 2007).
27. 45 C.F.R. § 164.524(c)(4).
28. 45 C.F.R. § 164.524(a)(1) (emphasis added).
29. Id. § 164.524(c)(4) (emphasis added).
30. 45 C.F.R. § 160.103.
31. This canon “creates a presumption that when a statute designates certain persons, things, ormanners of operation, all omissions should be understood as exclusions.” Silvers v. Sony PicturesEntm’t, Inc., 402 F.3d 881, 885 (9th Cir. 2005) (en banc) (internal quotation marks omitted)
32. 45 C.F.R. § 164.502(g).
33. Id. at 1098.
34. Id. at 1085.
35. 65 Fed. Reg. 82,492.
36. 67 Fed. Reg. 53,254.
37. Clark Equip. Co. v. Wheat, 92 Cal. App. 3d 503, 154 Cal. Rptr. 874, 884 (Cal. Ct. App. 1979).
38. Webb, 499 F.3d at 1087, citing 42 U.S.C. § 1320d-2 note.
39. 45 C.F.R. § 160.202.
40. 65 Fed. Reg. 82,462 (Dec. 28, 2000).
41. HIPAA, 45 C.F.R. § 160.310(a).
42. 45 C.F.R. § 160.310(c)(1).
43. 45 C.F.R. § 160.522.
44. 45 C.F.R. § 164.530(j).
45. 65 Fed. Reg. at 82,750.
46. 45 C.F.R. § 164.502(g).
47. In re Berg, 152 N.H. 658, 668 (N.H. 2005), citing 45 C.F.R. §164.502(g)(3)(i).
48. Id., citing 45 C.F.R. §164.502(g)(3)(ii)(b).
49. N.H. REV. STAT. ANN. § 330-A:32.
50. Med 4 Home, Inc. v. Geriatric Servs. of Am., 2008 U.S. Dist. LEXIS 95211 (D. Ariz. Nov. 12,2008).
51. Grable & Sons Metal Products, Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005).
52. Id. at 318.
53. Id. at 312.
54. Id. at 314.
55. Med 4 Home, Inc., 2008 U.S. Dist. LEXIS 95211 at *10.
56. White v. State, 370 Ark. 284 (Ark. 2007).
57. Id. at 291.
58. Id. at 292.
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Organizational Advice for the Commercial LitigatorVol. 1, No. 12Cristen Sikes
Cristen Sikes started as an associate in the commercial litigation group of DLA Piper Rudnick GrayCary US LLP’s Washington, DC, office, in 1999, where she remains today. Ms. Rose’s areas ofpractice include securities, corporate, commercial, and environmental litigation, and she has triedcases in state and federal courts and in private arbitrations.
From The Commercial Litigator’s Job, Section 2
Learn how to set up an efficient daily routine.Find out how never to miss a deadline.
Suggested Daily RoutineOne of the most important things to manage as a young lawyer is deadlines. Clients and seniorattorneys schedule their own work based upon the promised delivery of supporting work from juniorlawyers. Consider the following:
1. Do not arrive at your desk later than those to whom you report arrive at theirs.2. Check phone and e-mail messages; add them to “to do” lists.
Keep “to do” lists for both general responsibilities and specific projects.Do not allow “to do” items, phone messages, or e-mails to accumulate.
3. Review your calendar daily for upcoming deadlines and appointments.4. Review mail in your “In” box.5. Review open items on “to do” list. Decide which items need attention before noon, which needattention by the end of the day, and which can wait until the following day.6. Check advance sheets and/or legal newspapers to see if there is new law affecting any of thecases on which you are working.7. Begin billable work within thirty minutes of arriving. This sounds easy but is not. Doing so will helpyou focus on billable work early in the day, which, in turn, will keep you from staying lateunnecessarily and will enhance your reputation for productivity.8. At the end of the day, make certain that all billable time has been recorded.9. Do not leave the office until phone messages and e-mails have been reviewed and handledappropriately.
Clients and senior lawyers (some of whom you have not met and will not meet) will monitor andscrutinize your billable hours very closely. You should monitor and scrutinize them at least as closely.
1. Read and comply with your firm’s policies regarding billing, recording time, and time entry.
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2. Record your billable hours throughout each day. This may sound easy, but it is not. When you areworking on multiple small matters, record them whenever you finish working for one client and startworking for another.3. Always submit your timesheets on time and under your firm’s guidelines.4. Use detailed time entries in the active voice. Write “Analyzed minutes of the board of directors andstockholder correspondence.” Do not say “Attention to discovery.”
A good general rule is that more detail is always better. Say “Analyzed lease for 1600 FirstAvenue property; analyzed correspondence between lessor and landlord.” Do not say “Attentionto real estate matters.”Remember that your time entries are transcribed onto the client’s bill and that some lawyersview timesheets as the best form of advertising. Ideally, the client would read their bill andthink “Wow! You did all of that?” If your time entry reads “7.5 hours—attention to discovery,”you are unlikely to get this reaction.Always bill accurately. Do not “pad” your time or record less time than you actually worked on amatter. You may feel that it took you too long to write a letter, but it is the billing attorney’sresponsibility to adjust your time, not yours.Avoid round numbers. Most people do not really work “8.0 hours.” A timesheet showing lots ofround numbers looks padded; 7.8 hours looks more realistic.
5. When accepting an assignment, always ask if there are any special billing procedures orsensitivities. For example, some clients require attorneys to bill in tenths of an hour, while othersrequire billing in different increments. In addition, some clients will require that you use special billingcodes that they provide.6. Ask the assigning lawyer how many hours he estimates the project should take. If the expectedtime is more than ten hours or so, check with a supervising lawyer after four or five hours todetermine if you are on the right track.7. Periodically assess how many total hours you have put into each project. Senior lawyersappreciate that you consider not just your own hours, but also the client’s bill.
Managing a Litigation CalendarNever miss a deadline. You or your firm may be the greatest advocates of the modern era, but if youare sloppy about deadlines, you will lose cases. Also, do not rely on a calendaring department, aparalegal, or a secretary to track your deadlines.
General Calendar IssuesYour calendar is your most important professional tool. It can tell you when assignments aredue, whether you can go on vacation, when you are due in court, whether tonight is a goodnight to go home early, and what you have been doing for the last few months. Pay attentionto it.Train yourself to consult your calendar before making any time-consuming or time-sensitivecommitment, whether personal or professional.You will have court-imposed deadlines as well as deadlines for delivery of material tosupervisors and clients. Use your calendar for both. Do not forget to add deadlines for firm orclient work to your calendar.Take care counting days. Always consult the applicable rules about how days are counted: Doyou count all days or only business days? The answer may vary depending on how many daysyou are counting (e.g., if you are counting seven days or less, you may count business daysonly, but you will include calendar days if you are counting more than seven days). Are daysadded if particular methods of service are used (e.g., serving a document by mail may addthree days)?Note what constitutes the end of the deadline day. Midnight? The close of the clerk’s office atthe courthouse (sometimes at 4:30 p.m.)? The close of business?
Electronic vs. Paper Calendars
You can track appointments and deadlines electronically or with a paper organizer.
The Electronic Method
1. The electronic method requires calendar software that has a “reminder” capability (such asOutlook) and an electronic organizer or PDA (a personal digital assistant, such as a Palm Pilot orBlackberry) that you can synchronize with your computer. The electronic method works as follows:
Anytime you receive a pleading or discovery to which you must respond, check the court rulesfor the deadline and enter it on your computer.For major deadlines, such as the deadline for filing a motion for summary judgment or the cut-off for discovery, set the reminder for thirty to forty-five days in advance. For tasks that takeless time, such as responses to simple interrogatories, one to two weeks may be sufficient.When your “reminders” appear, notify those who assigned you the work of the impendingdeadlines. They will appreciate the notice.
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2. WARNING: Some courthouses do not permit electronic devices, including PDAs, in courtrooms.Accordingly, always take along a printout of your calendar for the next six to nine months when yougo to court. That way, you will have your calendar if the judge wants to set a schedule. If the seniorattorney on a case is not going to accompany you on a court date, you also may request that heprovide you a printout of his schedule so that you will not create conflicts for him.
The Paper Method
1. The paper method requires a paper desk calendar and a tickler system. The advantages of apaper calendar are that you can always have it with you, and you can easily see your deadlines.2. Calendars that permit you to view a month at a time and include space for notes on upcomingevents are best. Enter deadlines on your calendar as they are set. Use the notes space to remindyourself of upcoming tasks and deadlines. Use the paper method as follows:
Get an expandable file with slots numbered one through thirty-one (the days of the month).Copy deadline-related documents and put them in the numbered slot for the day of the monthon which you want a reminder. Each morning, review the documents in that day’s slot.
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Mergers and Acquisitions: The BasicsVol. 1, No. 12Matt Swartz
Matt Swartz is a partner in the corporate and securities group of Pillsbury Winthrop Shaw Pittman,LLP. He advises buyers and sellers in mergers and acquisitions, issuers and investors in privatefinancings, and issuers and underwriters in public offerings. He also provides private and publiccompanies with general corporate counsel. Matt is based in the Washington, DC, metropolitanarea, where he lives with his wife and two children.
From The Corporate, Securities, and M&A Lawyer’s Job, Chapter 1
Find out about different types of acquisition transaction structures.Learn about the laws that govern mergers and acquisitions.
There are many observations to make about merger and acquisition transactions, and this book doesnot describe them all. Some excellent reference books go much deeper into M&A, such as Anatomyof a Merger by James C. Freund, Negotiated Acquisitions of Companies, Subsidiaries, and Divisionsby Lou R. Kling and Eileen T. Nugent, Mergers, Acquisitions, and Buyouts by Jack S. Levin and MartinD. Ginsburg.
Presented here are some basics of which you should be aware.
Following are the three transaction structures that nearly all acquisitions follow:
1. Asset purchase. In an asset purchase, the buyer buys all (or part) of the seller’s assets andassumes only the seller’s liabilities expressly agreed to be assumed (except where the law causessome liabilities to follow the assets regardless). Assets can be both tangible (e.g., plant, propertyand equipment) and intangible (e.g., intellectual property, corporate name and goodwill). Forexample, if the company selling the assets owed money to a creditor before the sale of assets, it willcontinue to owe the money after the sale, but the buyer of assets will not be liable for it, as long asthe asset sale does not constitute a “fraudulent conveyance.” (See this and other terms in theGlossary at the end of this book).
2. Stock purchase. The acquisition of a company by stock purchase involves the purchase of all theseller’s shares. A buyer may purchase less than all of a seller’s shares and “squeeze out,” or force asale by statutory short-form merger (see Glossary), the remaining shareholders in order to own 100percent of the shares of the company being acquired. Unlike a buyer in an asset sale, a buyer ofstock accepts ownership of the company with all of its assets and liabilities. So if the purchasedcompany owed money to a creditor before the sale, the company in the buyer’s hands still owes themoney after the sale. The purchase of a company by acquiring all of its publicly-traded stockinvolves a “tender offer” by the buyer in which the buyer publicly solicits for shares of the seller at acertain price. Tender offers are regulated by federal securities law.
3. Merger. In a merger, two companies combine to form one upon the issuance of a “merger
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certificate” by the relevant state. The surviving company in a merger assumes all liabilities andreceives all assets of the disappearing company. A merger is a creation of law and for this reasoncan be hard for some people to conceptualize. In a stock purchase, the buyer holds stock. In anasset purchase, the buyer holds assets. Upon a merger, however, the law deems two entitiescombined, and all assets of both are owned by the surviving company.
Regardless of whether the acquisition is an asset purchase, a stock purchase, or a merger, the buyerusually forms a wholly owned subsidiary to hold the acquired business and shield itself from any ofthe liabilities of the purchased company.
The terms of acquisition transactions are reflected in an acquisition agreement. The acquisitionagreement could be an asset purchase agreement, a stock purchase agreement, or a mergeragreement, depending upon which structure the transaction assumes. Regardless of the transactionstructure, all mergers and acquisitions agreements have four main components:
1. Representations and Warranties. Representations and warranties are statements made by a partyin an agreement referring to facts or matters about the party making them. They speak bothnegatively—e.g., “there is no litigation pending, or to the knowledge of the company, threatened;”and affirmatively—e.g., “each of the company’s employees earning more than $100,000 per year arelisted on Schedule A.” These representations, or “reps,” are negotiated over issues such as whetherindividual reps are qualified by the “knowledge” of the person making them or whether an individualrep is made only as to “material” matters. A vital counterpart to reps and warranties is the disclosureschedule. See Chapter 6 for a discussion of disclosure schedules.
2. Covenants. Most covenants exist to assure the buyer that the acquired business will not changesignificantly during the period between signing the acquisition agreement and closing the acquisition.“Closing” occurs when the buyer provides the seller the payment of cash, stock, or debt and theseller transfers to the buyer the assets or stock being acquired. During the period after signing theacquisition agreement but before closing, the parties take actions required for closing, such asobtaining consents of shareholders and/or other third parties (e.g., where a seller contract with athird party would terminate upon a “change of control”). Some covenants, such as covenants toindemnify the buyer or to refrain from competing with the buyer, cover the period after the closing ofthe acquisition.
3. Conditions to Closing. Conditions to closing recite things that must happen, or not happen, foreach party to be obligated to close the acquisition. Some of these are obvious: the buyer must payand the seller must deliver the stock, assets, or company. Other common conditions to closinginclude:
that the reps made at signing are still true in all material respects at closing;that board and shareholder approval was obtained;that no law or court order prohibits the transaction from closing; andthat any other agreements to be delivered as part of the acquisition (such as employmentagreements from key seller-employees) be signed by the parties required to sign them.
4. Indemnification. In the indemnification section, the parties agree as to who must pay for liabilitiesresulting from the acquisition and incurred by the buyer after the closing. Indemnification isnegotiated over issues such as:
how long the buyer has to discover that the seller breached the reps and warranties in thepurchase agreement (“survival” of the reps and warranties);total monetary exposure of the seller to the buyer and whether there is a limit to the seller’sexposure (an “indemnification cap”);whether any money to be paid to the seller should be held in escrow to satisfy potential futureindemnity claims and, if so, how much and for how long it should be held; andwhether there should be a minimum amount of damage that the buyer must sustain beforehaving the right to require the seller to pay for losses and, if so, whether the buyer mayrecover the full amount of the damages sustained or only the amount in excess of theminimum amount (this provision is known as a “basket”).
In addition, there are a few agreements that often accompany an acquisition agreement. Thesemight include:
Disclosure Schedules: see Chapter 6.Employment Agreements: Buyers usually want to retain the sellers’ management team for atleast some period after the acquisition. Keeping the seller’s management in place helps tofacilitate a smooth transition from the previous owners to the new one. Generally, employmentagreements are used to provide these executives with the incentive to work for the new owner.Employment agreements generally include provisions relating to salary, bonus, any stockoptions or other equity compensation of the employee, other benefits, and the bases for his orher termination (with and without “cause,” as the agreement defines it).Noncompetition Agreements: Noncompetition agreements give the buyer the right to restrict aperson, such as a seller or employee from working for a competitor if he or she quits or isterminated by the new owner. In any case, they should be carefully considered because statelaws regarding restrictions on competition vary greatly. Some states, such as California,disallow restrictions on competition in almost all situations. Other states restrict the durationand breadth of noncompetition agreements. Because of this, you may want to ask yoursupervising lawyer whether an employment lawyer should review the noncompetition
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agreement (or clause) in your transaction.Resolutions approving the transaction: see Chapter 10.
Note that companies sometimes use their stock to pay for an acquisition. Where this is the case, thebuyer must issue securities legally. See “Issuing Securities” set forth in Chapter 13.
Laws Governing Mergers and AcquisitionsMerger and acquisition transactions are governed by several different areas of law. No single area oflaw governs M&A transactions because (1) they affect many different corporate constituencies; and(2) for the seller (and occasionally the buyer), an acquisition represents a change in corporatecontrol. The corporate constituencies affected in a merger include the seller’s shareholders,customers, employees, and vendors. In addition, corporate directors have special obligations whenthe company is to be sold. A change of corporate control means that each of these groups will beworking under new owners whose approach to the business may differ from the prior owners’.Following are the areas of law that most frequently apply to mergers and acquisitions transactions:
Corporate Law
Merger statute. Where an acquisition is structured as a merger, the corporate law of each stateincludes a statute that details the requirements necessary to complete a merger and, usually, theeffect of the merger upon its completion. Sections 251 and 252 of the Delaware General CorporationLaw are good examples. Section 251 governs mergers between Delaware corporations (i.e., betweentwo “domestic” corporations), and Section 252 governs mergers between a domestic corporation anda corporation incorporated in another state (a “foreign” corporation).
Board Duties
Members of the board of directors of a corporation are fiduciaries who owe duties to thecorporation’s shareholders. When the corporation is considering a sale, directors continue to owethese duties, and fulfilling them in mergers and acquisitions transactions often requires special care.Court decisions in Delaware and other states provide some guidance to directors in fulfilling theirduties to shareholders in the course of a transaction. A broad discussion of board duties is describedin Corporate Directors Guidebook edited by the American Bar Association’s Committee on CorporateLaw.
Duty of care. As you probably already know, directors are obligated to exercise appropriate diligenceto become informed in making decisions and overseeing the management of the company. Thismeans regular attendance at meetings, reviewing materials provided, engaging experts whereappropriate, and asking questions of the company and its management. In a merger and acquisitionstransaction, the duty of care generally requires that directors take sufficient time to make decisions,inform themselves about alternatives, and thoroughly analyze all proposals, including their strengthsand weaknesses. Sometimes directors engage outside experts, such as investment bankers orvaluation experts, to help them confirm whether a given acquisition proposal fairly values thecompany.
Duty of loyalty. The duty of loyalty generally requires a director’s conduct be in the corporation’sbest interest and that the director not deal with the company in a manner that favors himself orherself over the corporation. In a merger and acquisitions transaction, the duty of loyalty restrictsdirectors from improperly profiting from a company sale in a manner not shared by shareholders.This could occur if a director serves on the boards of both the buyer and the seller, in which caserecusing oneself from acquisition discussions on either board is the best advice. Another possibleviolation of the duty of loyalty in an acquisition transaction would be an “interested directortransaction,” such as special fees a director might receive from the company for services inconnection with an acquisition. State merger statutes usually permit interested director transactionsas long as disinterested directors or shareholders are fully informed and approve them. As anexample, review Delaware’s interested director statute, Section 144 of the Delaware GeneralCorporation Law.
Business judgment rule. The business judgment rule is not a description of a duty; it is a principleused by courts to assess the conduct of corporate directors in order to determine whether thedirectors can be held liable for their actions. The business judgment rule is often analyzed whenshareholders sue directors after an acquisition or other corporate transaction ends badly (or at leastnot as well as the shareholders would have preferred). The business judgment rule provides that aslong as directors do their job honestly and diligently, the law will not penalize them for a badoutcome. The policy behind this rule is that no court should be able to second guess the judgment ofa director who had adequately informed himself or herself at the time the decision was made.
Shareholder Vote Required
The merger statute of the target’s state of incorporation provides for the shareholder approvalrequirement for a merger. The voting requirements for a sale of substantially all assets maysometimes be found elsewhere in the corporate statute. Stock purchases do not require shareholdervotes because shareholders make the decision to sell their shares individually. Note also that the
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contents of a company’s charter may have its own voting requirements for a company sale, so besure to consult the charter as well as the relevant statutes. When a company is required to take avote of its shareholders, state corporate laws generally permit the vote to take place either at ameeting of shareholders or by written consent. When the vote is taken at a shareholders’ meeting,the company will most likely solicit proxies from shareholders.
Proxy Solicitations
Proxies authorize one person to vote the shares of another. As a legal matter, shareholder proxiesare governed by both state corporate laws and federal securities laws. The law of the company’sstate of incorporation governs issues related to the proxy itself, such as what content is required foran effective proxy, when it can be revoked, and the like. For example, Section 212 of the DelawareGeneral Corporation Law addresses these issues for Delaware corporations. When a proxy is solicitedfrom holders of registered securities (publicly held securities), federal securities laws govern whatinformation must be included in the proxy statement. Federal laws related to proxies are found inSection 14(a) of the Regulation 14A under the Securities Exchange Act of 1934. Proxy statementswith respect to registered securities must be filed with the Securities and Exchange Commission(SEC).
Tax LawsTax issues are everywhere in mergers and acquisitions. The very decision by a client to make anacquisition can be significantly influenced by tax considerations. Certainly, the structure ofacquisitions is influenced heavily by tax issues. Tax lawyers need to be involved in mergers andacquisitions transactions from the beginning. Nearly all of these issues arise under the InternalRevenue Code of the United States (IRC), although state and local taxes can also be important. Onemergers and acquisitions treatise useful for understanding the tax issues in acquisitions is Mergers,Acquisitions, and Buyouts by Jack S. Levin and Martin D. Ginsburg. Among the tax issues frequentlyseen in acquisitions are: whether the transaction can be structured as a tax-free reorganization,whether the sellers can receive capital gains treatment of the consideration, whether the sellers maybe subject to two levels of tax (as opposed to one), whether the buyer can use any net operatinglosses that the seller may have accrued, the buyer’s tax basis in the acquired assets, whether thepurchase price can be structured as an installment sale (with resulting tax deferral), and whetherany payments to insiders of the seller will be deemed “golden parachutes,” which are subject toadditional taxes.
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Client Rapport and Ethical Considerations | General Practice, Solo and Small Firm Division
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Client Rapport and Ethical ConsiderationsVol. 1, No. 12L. Rush Hunt, Mike McCauley, and Patricia Ann Day
L. Rush Hunt is currently engaged in the private practice of law in Madisonville, Kentucky, wherehe devotes much of his time to areas of estate and trust law. Mr. Hunt brings more than 25 yearsof experience in estate planning and related areas of the law to the writing of this text, includingnot only his legal experience but also his experience as a certified financial planner and hisprevious employment as a vice-president of trust services for Citizens Bank of Kentucky. MikeMcCauley is a staff attorney with Cumberland Trace Legal Services, funded in part by grants fromthe Legal Services Corporation. Cumberland Trace Legal Services provides a variety of legalservices to elder clients including representation in the areas of Social Security, Medicare andMedicaid. Patricia Ann Day is currently engaged in the private practice of law in Madisonville,Kentucky, where she devotes much of her practice to family law, estates, and personal injury.
From Understanding Elder Law, Chapter 1
Discover how to maintain confidentiality.Find out how to avoid multiple representation.
Determining Who Is the ClientAttorneys dealing with elder clients often face ethical issues in determining competence, in properlyrepresenting the impaired or incapacitated client, and determining who is actually the client. One ofthe first questions the attorney must ask is “who do I represent? Is it the elderly person, is it thefamily member, or is it both?”
The attorney must clearly understand who is represented, and communicate that relationship to theother parties involved. An attorney’s fiduciary duty is of the highest order and you must notrepresent interests adverse to those of the client. It is true that because of your professionalresponsibility and the confidence and trust that your client places in you, you must adhere to a highstandard of honesty, integrity, and good faith when dealing with the client. You are not permitted totake advantage of your position or superior knowledge to impose upon the client, nor conceal factsor law, nor in any way deceive him without being held responsible therefore.
If you represent the older family member, you must advise the other family members of yourobligation of undivided loyalty to your client and the requirement of the confidentiality of lawyer-client communications. The professional judgment of a lawyer should be exercised, within the boundsof the law, solely for the benefit of the client and free of compromising influences and loyalties.
Maintaining ConfidentialityA fundamental principle in the attorney-client relationship is the attorney’s duty to maintainconfidentiality of information relating to the representation. The client is thereby encouraged to
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communicate fully and frankly with the attorney even when dealing with embarrassing or legallydamaging subject matter. And it is important to remember the duty of confidentiality continuesafter the attorney-client relationship has terminated. The American Bar Association Model Rules forProfessional Conduct, Rule 1.6, provides some guidance:
(a) A lawyer shall not reveal information relating to representation of a client unless theclient consents after consultation, except for disclosures that are impliedly authorized inorder to carry out the representation, and except as stated in paragraph (b).
(b) A lawyer may reveal such information to the extent the lawyer reasonably believesnecessary
(1) to prevent the client from committing a criminal act that the lawyer believes is likelyto result in imminent death or substantial bodily harm; or
(2) to establish a claim or defense on behalf of the lawyer in a controversy between thelawyer and the client, to establish a defense to a criminal charge or civil claim againstthe lawyer based upon conduct in which the client was involved, or to respond toallegations in any proceeding concerning the lawyer’s representation of the client.
The attorney must be careful if family members desire to be present when the attorney is counselingthe elder client. The question of undue influence can arise whenever the elder client has anotherperson present at the interview. But you should not automatically exclude everyone except the elderclient from the interview. You should consider the reasons why the elder client wants another personpresent. There may be legitimate reasons, such as when the client wants someone there for moralsupport. But then it may be because the client is a victim of undue influence. How do you know? Theburden on the attorney is significant though seldom appreciated by the client or the client’s family.The confidentiality rule applies not merely to matters communicated in confidence by the client butalso to all information relating to the representation, whatever its source.
Multiple RepresentationMultiple representations are easy to fall into. The appointment is made by the adult child for theelderly parent to discuss wills, powers of attorney and advance directives. The child drives the parentto the appointment and comes in to meet with the parent and attorney. The child may do most ofthe talking and is the one who writes the check to pay the legal fee. You may have done legal workfor both parent and child in the past. They consider you the family’s attorney. Who is your client?Often times there is no problem, but what do you do when the child appears to pressure the parentinto naming her as personal representative and power of attorney? This may appear to be the bestdecision, but it won’t look so clear if at a later date another child contacts you complaining ofpossible improprieties by the child who now has power of attorney under the document you preparedand your secretary notarized. It is even worse if the child makes you aware of the parent’s decliningmental condition and you only spent 30 minutes interviewing the client because it was a boilerplatesimple will and power of attorney.
The watchword is caution. Make the ethical problems known at the beginning of the representation.Keep in mind the Rules of Professional Conduct, Rule 1.7, which states:
(a) A lawyer shall not represent a client if the representation of that client will bedirectly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect therelationship with the other client; and
(2) each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may bematerially limited by the lawyer’s responsibilities to another client or to a third person,or by the lawyer’s own interests, unless
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation. When representation of multiple clients in asingle matter is undertaken, the consultation shall include explanation of theimplications of the common representation and the advantages and risks involved.
Then document in your files that you explained these issues, hope for the best, and do your job well.
Estate Planning ConflictsConflict questions may also arise in estate planning and estate administration. An attorney may becalled upon to prepare wills for several family members, such as husband and wife, and dependingupon the circumstances, a conflict of interest may arise. In estate administration, the identity of theclient may be unclear under the law of a particular jurisdiction. In one view, the client is thefiduciary; in another view, the client is the estate or trust, including its beneficiaries. The attorneymust make clear the relationship to the parties involved. For example consider the followingscenario:
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Client Rapport and Ethical Considerations | General Practice, Solo and Small Firm Division
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An attorney in estate practice represents an older couple for whom she prepares “mirror wills” inwhich each leaves the estate to the other. Several days after the wills are executed, the husbandalone visits the attorney, asks the attorney to prepare a new will leaving the bulk of his estate toanother woman, and instructs the attorney to keep the visit confidential from his wife. How shouldthe attorney respond? May she draft the new will? May she—indeed, must she—disclose thecircumstances of the visit to the wife?
In 1994, six organizations (the American Association of Retired Persons, ABA Commission on LegalProblems of the Elderly, ABA Section on Real Property, Probate and Trust Law, American College ofTrust and Estate Counsel, National Academy of Elder Law Attorneys and Fordham Law School’s SteinCenter for Ethics and Public Interest Law) met to discuss ethical issues in representing older clients.The scenario set forth above was one of the issues discussed at this conference. The consensus ofopinion at the conference on the above scenario is as follows:
Taking a practical approach, participants in the Conference perceived that the estateattorney’s dilemma was largely of the attorney’s making. By appropriately counselingthe clients at the outset of the representation, in a manner participants deemedconsistent with the existing Model Rules, the prudent estate attorney would ordinarilyavoid having to act in a manner that one client or the other might reasonably regard asan act of betrayal. Thus, the Conference recommended that when an attorney is askedto represent multiple family members, the attorney should explore the possibility that aconflict of interest will arise with the prospective clients. Furthermore, the attorneyshould explain to the family members how confidences will be treated.
The prospective clients should be told at the initial client conference that one client’s disclosures willnot be kept confidential if they involve revelations that are relevant and adverse to another client’sinterest. In the context of estate planning in particular, the spouses should be told that there can beno secrets as to issues material to the estate plan. Unless the family members agree in advance thatconfidences will be handled in this manner, they must seek separate attorneys. Moreover, even withrespect to how nonmaterial disclosures are to be handled, attorneys should reach someunderstanding with the clients in advance regarding the nonmaterial disclosures. Having achieved anunderstanding about how confidences will be handled, the attorney can then act in accordance withthat understanding without reasonably being accused of violating the duty of loyalty orconfidentiality. For example, the husband who intended to alter his will without his wife’s knowledgewill be on notice that, if he seeks the assistance of the estate attorney who had prepared thecouple’s “mirror wills,” that attorney will be obligated to inform the wife.
Accepting Payment of Fees from Non-ClientWhat ethical problems can the attorney face when another family member and not the client wantsto pay for the legal services given to the elderly client? The Model Rules of Professional Conduct,Rule 1.8, addresses this issue:
(f) A lawyer shall not accept compensation for representing a client from one other thanthe client unless:
(1) the client consents after consultation;
(2) there is no interference with the lawyer’s independence of professional judgment orwith the client-lawyer relationship; and
(3) information relating to representation of a client is protected as required by Rule1.6.
If your services are being paid for by other family members, you must obtain consent for thisarrangement from the older family member who is the client. Yet, the mere fact the attorney isactually paid by some entity other than the client does not affect that relationship, so long as theattorney is selected by and is directly responsible to the client. On the other hand, if you choose torepresent other family members, you must explain your role to the older family member and offer noadvice except to advise the older family member to obtain his or her own counsel.
Setting FeesAttorneys should keep a detailed itemized statement of all charges for the elderly client. Anattorney’s fee must be reasonable. Factors to be considered in determining the reasonableness of afee include-·the following:
(A) The time and labor required, the novelty and difficulty of the questions involved,and the skill requisite to perform the legal service properly.
(B) The likelihood, that the acceptance of the particular employment will preclude otheremployment by the attorney.
(C) The fee customarily charged in the locality for similar legal services.
(D) The amount involved and the results obtained.
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(E) The time limitations imposed by the client or by the circumstances. (F) The natureand length of the professional relationship with the client.
(G) The experience, reputation, and ability of the attorney or attorneys performing theservices.
(H) Whether the fee is fixed or contingent.
The determination of a proper fee requires consideration of the interest of both client and attorney.An attorney should not charge more than a reasonable fee; excessive cost of legal service woulddeter laymen from utilizing the legal system in protection of their rights. Furthermore, an excessivecharge abuses the professional relationship between attorney and client. On the other hand,adequate compensation is necessary in order to enable the attorney to serve his or her clienteffectively and to preserve the integrity and independence of the profession.
The importance of determining your fee arrangement is illustrated in Kentucky Bar Assn. v. Noble.The attorney was disbarred from the practice of law for charging an excessive or illegal fee, having aconflict of interest, making a false statement to a tribunal and engaging in conduct involvingdishonesty, fraud, deceit, and misrepresentation. The attorney violated Disciplinary Rule 2-106 whenhe entered into a contract calling for payment of attorney’s fees for three visits to his client in anursing home per day for two hours per visit at $110.00 per hour, which constituted a charge of aprofessional fee for nonprofessional services. He further was found guilty of violating DisciplinaryRule 5-101, which prohibits an attorney from accepting employment if exercising professionaljudgment on behalf of a client may be affected by the attorney’s own financial, business, property, orpersonal interest. This second violation was because the attorney prepared a will for his client inwhich he named himself as executor, knowing he would be asserting a substantial financial claim of$145,000.00 against the estate for legal fees. Law is still meant to be practiced as a profession andnot a business enterprise—a fact increasingly overlooked by many in our profession. May they soonfind other work.
Competency of Elder ClientCompetent adults have the right to make decisions, whether or not the decision is the same as theone the attorney would make; and protecting the client’s autonomy in making a decision is crucial inthe attorney-client relationship. Whether an elderly client has the mental capacity to make majorlegal decisions for his or her life is a concern to the attorney. If there is doubt, the attorney shouldcontact the client’s physician and gain the-physician’s assistance in making the determination.
Today many of our elderly are facing the terrible disease of dementia: Dementia refers todegenerative diseases that result in the progressive deterioration of intellectual and emotionalfunctions. This disease can virtually destroy a person’s mind and leave him helpless.
When a client’s ability to make adequately considered decisions in connection with the representationis impaired, whether because of mental disability or for some other reason, the attorney shall, as faras reasonably possible, maintain a normal attorney-client relationship An attorney may seek theappointment of a guardian or take other protective action with respect to a client only when theattorney reasonably believes that the client cannot adequately act in the client’s own interest.
The normal attorney-client relationship is based on the assumption: that the client, when properlyadvised and assisted, is capable of making decisions about important matters. When the clientsuffers from mental disorder or disability, however, maintaining the attorney-client relationship maynot be possible in all respects. In particular, an incapacitated person may have not power to makelegally binding decisions. Nevertheless, a client lacking legal competence often has the ability tounderstand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being including making a will. Furthermore, to an increasing extent the law recognizes intermediatedegrees of competence. So it is recognized that some persons of advanced age can be quite capableof handling routine financial matters while needing special legal protection concerning majortransactions.
The fact that a client suffers a disability does not diminish the attorney’s obligation to treat the clientwith attention and respect. If the person has no guardian or legal representative, the attorney oftenmust act as de facto guardian. Even if the person does have a legal representative, the attorneyshould as far as possible accord the represented person the status of client, particularly inmaintaining communication.
When a disabled person or another acting in good faith on that person’s behalf has consulted theattorney in an emergency where the health, safety or a financial interest of the person under adisability is threatened with imminent and irreparable harm, an attorney may take legal action onbehalf of such a person even though the person is unable to establish a client-attorney relationshipor make or express considered judgments about the matter. Even in such an emergency, however,the attorney should not act unless the attorney reasonably believes that the person has no otherattorney, agent or other representative available. The attorney should take legal action on behalf ofthe disabled person only to the extent reasonably necessary to maintain the status quo or otherwiseavoid imminent and irreparable harm. An attorney who undertakes to represent a person in such anexigent situation has the same duties under the Rules of Professional Conduct as the attorney wouldwith respect to a client.
An attorney who acts on behalf of a disabled person in an emergency should keep the confidences of
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the disabled person as if dealing with a client, disclosing them only to the extent necessary toaccomplish the intended protective action. The attorney should disclose to any tribunal involved andto any other counsel involved the nature of his or her relationship with the disabled person. Theattorney should take steps to regularize the relationship or implement other protective solutions assoon as possible. Normally, an attorney should not seek compensation for such emergency actionstaken on behalf of a disabled person.
Any mental or physical condition of a client that renders the client incapable of making a consideredjudgment on his or her own behalf casts additional responsibilities upon the client’s attorney. Wherean incompetent is acting through a guardian or other legal representative, an attorney must look tosuch representative for those decisions that are normally the prerogative of the client. If a clientunder disability has no legal representative, the attorney may be compelled in court proceedings tomake decisions on behalf of the client. If the client is capable of understanding the matter inquestion or of contributing to the advancement of his or her interests, regardless of whether theclient is legally disqualified from performing certain acts, the attorney should obtain from the clientall possible assistance. If the disability of a client and the lack of a legal representative compel theattorney to make decisions for the client, the attorney should consider all circumstances thenprevailing and act with care to safeguard and advance the interests of his or her client. But obviouslyan attorney cannot perform any act or make any decision which the law requires the client toperform or make, either acting for himself or herself if competent, or by a duly constitutedrepresentative if legally incompetent.
If a legal representative has already been appointed for the client, the attorney should ordinarily lookto the representative for decisions on behalf of the client. If a legal representative has not beenappointed, the attorney should see to such an appointment where it would serve the client’s bestinterests. Thus, if a disabled client has substantial property that should be sold for the client’sbenefit, effective completion of the transaction ordinarily requires appointment of a legalrepresentative. In many circumstances, however, appointment of a legal representative may beexpensive or traumatic for the client. Evaluation of these considerations is a matter of professionaljudgment on the attorney’s part.
Also of note: if the attorney represents the guardian as distinct from the ward and is aware that theguardian is acting adversely to the ward’s interest, the attorney may have an obligation to prevent orrectify the guardian’s misconduct.
A client has the right to discharge the attorney at any time. However, if client is mentallyincompetent, the client may lack the legal capacity to discharge the attorney, and in any event thedischarge may be seriously to the client’s interests. The attorney should make a special effort to helpthe client consider the consequences and, in an extreme case, may initiate proceedings for aconservatorship or similar protection of the client. Representing the elderly when mental incapacitybegins its grasp of your client is a tricky ethical minefield. The client needs representation, but youmust be wise to avoid an ethical bomb blowing up on you.
Endnotes
1. Smoot v. Lund, 369 P.2d 933, 936 (Utah 1962).
2. ABA MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.6 cmts. [4] (2001).
3. ABA MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.6 cmts. [21] (2001).
4. ABA MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.6 (2001).
5. ABA MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.7 (2001).
6. ABA MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.7 cmts. [13] (2001).
7. Bruce A. Green, ABA Comm’n on Legal Problems of the Elderly, Ethical Issues in RepresentingOlder Clients (1994).
8. ld.
9. ld.
10. John R. Kinley & Jeffrey Beck, Elder Law: Dynamics of an Expanding Practice Area 1-7.
11. ABA Comm. on Ethics and Professional Responsibility, Formal Op. 320 (Feb. 19, 1968), see alsoABA Comm. on Ethics and Professional Responsibility, Informal Ops. 469 (Dec. 26, 1961) and 679(July 1, 1963).
12. MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.5 (2001).
13. ABA MODEL CODE OF PROFESSIONAL RESPONSIBILITY 2-17 (1969).
14. John J. Regan, Rebecca C. Morgan & David M. English, Tax, Estate and Financial Planning for theElderly, in Counseling for the Elderly Client § 1.6[4] AT 1-15 (1998).
15. John R. Kinley & Jeffrey Beck, Elder Law: Dynamics of an Expanding Practice Area § 1.6 AT 1-7.
16. MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.14 (2001).
17. MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.14 cmt. [1]. (2001).
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18. MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.14 cmt. [2]. (2001).
19. Model Rules of Professional Conduct Rule 1.14 cmt. [6]. (2001).
20. Model Rules of Professional Conduct Rule 1.14 cmt. [7]. (2001).
21. Model Code of Professional Responsibility Canon 7, at 7-12 (Ethical Consideration) (1969).
22. MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.14 cmt. [3].
23. MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.14 cmt. [4].
24. Model Rules of Professional Conduct Rule 1.16(b) cmt. [6].
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General Overview of the Criminal Justice Process | General Practice, Solo and Small Firm Division
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General Overview of the Criminal Justice ProcessVol. 1, No. 12Amber L. St. Clair
Amber L. St. Clair has an extensive background in criminal trials and civil lawsuits. Ms. St. Clairhas been a criminal defense lawyer for many years and began her career as a prosecutor.
From The Criminal Lawyer’s Job, Chapter 1
Gain a primary understanding of what to expect during the entire criminal justice process.Learn how to prepare your client for what may come.
There are approximately 18 stages to the criminal justice process, give or take a few dependingupon your jurisdiction’s procedural rules.
1. Crime Is Alleged to Have OccurredThe criminal justice process begins when someone makes an allegation that a crime has occurred.The allegation can be made by a law enforcement officer (sometimes they are the only witness to acrime, e.g., a traffic law violation) or a private citizen. At this point, your prospective client is knownas the suspect.
2. Police Conduct an InvestigationOnce a crime is alleged, law enforcement officers will begin to investigate. The complaining witnessor aggrieved victim will make a statement and written reports will be made of these statements. Ifthe only witness involves law enforcement, the officers will make written reports documenting whatthey observed.
If the investigating officer determines that there are other witnesses to the crime, she may takestatements from these people.
Evidence, if any, will be gathered at this time by collecting physical evidence located at the crimescene, taking photographs and video images of the scene and evidence, and retrieving relevantevidence from other locations.
Crime scene analysts may be asked to test various pieces of evidence or conduct examinations thatmay reveal further evidence (e.g., fingerprint analysis, chemical analysis of various substances).
The suspect (who will later become the defendant and your client) will be questioned at this time bythe investigating officer. Note: You will probably not be involved at this stage. Most defendants donot know any lawyers or do not have the money to pay a lawyer for advice before speaking to thepolice. Law enforcement officers must advise him of his rights if he is questioned in a custodialsetting. But the client is usually on his own at this point when choosing to waive his rights and speak
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with investigators.
A search warrant is necessary if the evidence is not in plain view or officers have no consent fromthe owner to search the thing that may contain the additional evidence. A search warrant is obtainedif an investigating officer believes that there is additional evidence to the alleged crime somewhereelse.
3. Arrest Is MadeIf sufficient grounds exist, the suspect will be taken into custody to be booked (have his prints andhis mug shot taken) and may be charged.
4. Crime Is ChargedIf sufficient grounds exist, the suspect may be charged with a crime or violation of the law. Allalleged violations of the law are set out in a charging document. This document seeks to notify theaccused of the charge and the law he is alleged to have violated. The defense attorney is notinvolved in drafting or negotiating this document.
As you may remember from your criminal procedure class, a charge can be brought in several ways.
Investigating Officer
Traffic infractions, petty offenses, and misdemeanor crimes can be charged by the investigating lawenforcement officer at the time of the initial contact with the suspect. The officer can prepare thecharging document herself. Ordinarily there is a uniform charging document or form used by theofficer. A carbon copy is served upon the defendant at the time. A speeding ticket is an example ofsuch a charging document. These charging documents notify the defendant of the time and place toappear in court to answer to the charges. If the officer works for a municipality, the chargingdocument will direct the defendant to appear in municipal court. If the officer works for the sheriff’sdepartment or state patrol, the charging document will likely direct the defendant to appear indistrict court. If the suspect is not taken into custody, he is free to leave.
Grand Jury Indictment
A crime can also be charged by a grand jury. In this instance, the prosecuting attorney conducts herown investigation into allegations of a crime. A grand jury is convened pursuant to the jurisdiction’slaw, and the prosecutor presents testimony and evidence to the grand jury. The court’s permission isnot required to convene a grand jury, and the court is not involved unless the prosecutor requeststhe court to compel a witness to testify.
The prosecutor asks questions of the various witnesses subpoenaed to testify before the grand juryand introduces exhibits through their testimony. Sometimes the members of the jury ask questions.
After all the evidence is presented, the prosecutor asks the grand jury to take a vote and indict onvarious charges submitted to the grand jury by the prosecutor. If the grand jury indicts, its findingwill be formalized into a written indictment that acts as the charging document. This indictmentconsists of a plain and concise statement of the essential facts constituting the crime charged. Itnotifies the defendant of the crime with which he is charged and the sections of the law he is allegedto have violated. It is signed by the grand jury foreman.
Often, defendants are not made aware of these proceedings. There is no right to have counselappear on defendant’s behalf.
Complaint and Information
If the crime alleged is more serious than a traffic offense, petty offense, or certain low-levelmisdemeanors, it will be presented by the lead investigating office to the jurisdiction’s prosecutingattorney. The prosecutor will review the facts and circumstances surrounding the alleged crime andmake a determination as to whether a crime will be charged and at what severity level. If the crimeis not a felony, a summons or notice to appear may be issued to the defendant along with aComplaint and Information notifying the defendant of the crime with which he is charged, thesections of the law he is alleged to have violated, and the time and place to appear to answer to thecharges.
Some jurisdictions separate the Complaint and Information in felony cases. The Complaint is filedfirst to commence the prosecution. It includes the crime charged and sections of the law alleged tohave been violated. The Information is filed after the preliminary hearing. It includes a plain andconcise statement of the essential facts constituting the crime charged.
A sample Complaint and Information/Felony is included as Exhibit A, and a sampleComplaint/Misdemeanor is included as Exhibit B on the enclosed CD-ROM.
About GPSolo eReport
GPSolo eReport is a monthly electronicnewsletter of the ABA General Pratice, Soloand Small Firm Division that combineselements of Solo, The Buzz, GPSoloTechnology eReport, and GPSolo Law Trends& News. Its purpose is to to put clear,comprehensive, cohesive, useful, and timelyinformation into the hands of Divisionmembers.
Visit the ABA General Practice, Solo andSmall Firm Division
More publications from the GeneralPractice, Solo and Small Firm Division
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A subscription to GPSolo eReport is includedwith your $45 annual dues payment to theGeneral Practice, Solo and Small FirmDivision. You can join the Division by visitingthe ABA membership website or calling the at800-285-2221.
More Information
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GPSolo eReport Editorial Board Members
Contact Us
Thomas Campbell, Managing EditorAmerican Bar Association321 N. Clark St.Chicago, IL 60654-7598Phone: 312-988-5990Fax: 312-988-6135
Kimberly Anderson, DirectorAmerican Bar AssociationGeneral Practice, Solo and Small FirmDivision
Jeffrey M. Allen, Editor-in-ChiefGraves & AllenOakland, California
General Overview of the Criminal Justice Process | General Practice, Solo and Small Firm Division
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Affidavit of Probable Cause
If the charge includes a felony, in addition to the complaint and information the prosecutor willprepare an affidavit of probable cause that will be sworn to by the lead investigating officer. Itusually consists of a summary of all the investigating officers’ reports. It alleges facts to supportprobable cause to believe a felony has been committed and probable cause to believe the defendanthas committed the felony. It requests the court to order the defendant to be brought to court toanswer the charges. Depending upon the severity level of the crime, the affidavit may request anarrest warrant. Thereafter, the warrant will be executed by the court and the defendant will bebrought to court to answer the charges. The defendant will be required to post bail or provide a bondin order to get out of custody.
If the charges are less severe (e.g., it is not a crime of violence, or it is a crime that does not carrya significant prison sentence), the affidavit may request that the defendant be summoned to court.That means that he can appear on his own without the need for arrest or to post bail.
5. Advisement of the ChargeThe first time the defendant appears in front of the judge in a felony case is often called theAdvisement. In a misdemeanor case, this first appearance is often called the Arraignment.
If defendant has posted bail or has been ordered to appear on summons, he will appear in acourtroom at a designated time and place. The court advises the defendant of the charges againsthim, certain constitutional rights, and, if he is still in custody, the amount of bail. Thereafter, thematter may be continued to another date for an attorney to appear with the defendant.
6. Defendant Contacts Attorney Regarding RepresentationUsually at this point, the defendant (or someone on his behalf) contacts you regardingrepresentation.
Most clients will seek your help after they have been charged. Most often, they are not financiallyable to seek your help before a matter is charged. Usually only affluent clients, those beinginvestigated for white-collar crimes, and those who know they are being investigated by a grand jurywill enlist the services of an attorney before the matter is charged. (Precharge representation is notcovered in this book.)
7. Client Retains Your ServicesIf you agree to take the case, you are “retained.” Smart lawyers always get their fees paid inadvance. If necessary to assist you in requiring your fee paid in advance, buy or rent a credit cardmachine. A wise attorney once told me, “Always get your money up front and never expect to makeanything more than what you get up front.” Regardless of when you obtain your fee, you should signa retainer agreement with the client outlining the parameters of your representation.
8. Meeting With the Client Face-To-FaceMeet with the client before filing any motion or entering your appearance (defined below). Duringthis meeting, you will
Review the charges with the defendant.Review the evidence required to establish the charges.Review the potential penalties and other consequences.Review the discovery you have obtained, if you have any.Review the attorney–client privilege.Review various expectations you have of the client.Determine how the client would like to proceed.Describe the process and proceedings yet to come, including the anticipated timeline.Obtain the client’s pertinent background information.
9. First AppearanceCourts in most jurisdictions will set a First Appearance or Advisement in order to give the defendantan opportunity to appear with an attorney and schedule future proceedings such as a preliminaryhearing or an arraignment. (Depending upon your jurisdiction, you may be required to file a writtenentry of appearance with the court in addition to appearing in court with the defendant.) Thedefendant is usually notified of the time a place of the proceeding in the charging document, in thesummons to appear, or during the Advisement.
10. Pretrial ProcessEvery action taken between the time you enter your appearance and the trial is known as the pretrialprocess. However, there is a distinction, of sorts, between this process before and after thepreliminary hearing. The process prior to the preliminary hearing may include filing motions to set a
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bond or modify a bond, obtaining and compelling discovery from the prosecution, conducting yourown investigation, and filing various pretrial motions including, but not limited to, objecting tojurisdiction, asking for change of venue, and asking the court to recuse itself.
11. Preliminary HearingIn most jurisdictions, the next court proceeding in the felony process is the preliminary hearing.During this proceeding the prosecution presents its evidence to the court and the court determines ifthere is enough evidence to continue on to trial. The court makes a probable cause determination asto whether a felony has been committed and the defendant has committed the felony. While thedefense is allowed to make argument regarding the evidence presented and cross-examine theprosecution’s witnesses, the defense’s ability to present evidence is often limited. Moreover, it isoften not wise to present defense evidence at this stage, as presentation of such may reveal thedefense strategy.
12. ArraignmentThe arraignment is a proceeding wherein the defendant is formally advised of the charges againsthim (they are read aloud to him by the court if he desires) and enters a plea on the record, in frontof the judge. The choices of pleas to be entered are
not guiltyguilty as chargednolo contendere or no contest (which has the same effect of a guilty plea, but the plea cannotbe used as evidence in a subsequent civil proceeding related to the same issue)guilty pursuant to a plea agreement with the prosecutionto stand silent (thereafter the court enters a not guilty plea on the defendant’s behalf)
If a “not guilty” plea is entered, the defendant should ask for a jury trial on the record. Entering anot guilty plea does not foreclose the option to later dispose of the case pursuant to a pleaagreement. It is merely a formality that ensures the protection of the defendant’s constitutional rightto a speedy and public trial.
The effect of formerly entering a plea at arraignment is to start the clock running on the client’s rightto a speedy trial (speedy trial is a constitutional right; each jurisdiction has codified this right andyou can find the rule of law in the statutes or the code). A trial date is usually chosen at this time.Other dates such as pretrial motion dates may be scheduled.
13. Pretrial ConferenceThe pretrial conference is a calendar-management hearing. It always occurs after arraignment.Either the court will automatically set one or one of the parties will request one. Some courts likethem because it gives them insight as to whether the parties are working nicely and fairly with oneanother and there is a possibility of settlement.
During the conference, the court and the parties get a sense of whether the case is really going totrial.
In some jurisdictions, the court sets all future court dates during this proceeding. This includes acertain trial date and a date or dates to hear remaining pretrial motions. In addition, the court mayset deadlines for the completion of discovery and for filing pretrial motions, and may advise theattorneys of various rules and expectations the court has regarding trial.
These conferences can be a useful tool for the defense as a reality check for the client, to rethink areasonable offer. Once the client sees the court setting an actual trial date and imposing certaindeadlines and restrictions on the parties, he may realize that the case is not going away and mayreconsider his decision to plead not guilty.
14. Trial PreparationEverything that occurs in the defense attorney’s office after arraignment is known as trialpreparation. It involves additional factual investigation, legal research, drafting and filing variouspretrial motions, and preparing arguments, presentations, and evidence for trial.
15. Pretrial HearingsPretrial hearings are usually held closer to trial and are conducted in order to resolve all issuesremaining before trial. The motions addressed at this point usually include motions to suppressevidence, motions in limine, and motions for sanctions for discovery violations.
These hearings act as the last reality check for the defendant who has a significant chance of beingconvicted at trial. It is usually during these hearings that he realizes he is about to cross the point ofno return. Often, such a reality check may be necessary to convince an unrealistic client that heshould accept a plea offer or begin plea negotiations.
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16. TrialThe next proceeding is a trial. Trials can be to juries or to the court. The jury trial process includes,in order:
Voir dire (choosing the jurors)Prosecution’s opening statementDefendant’s opening statement (if counsel chooses not to waive or reserve until the beginningof the defense case in chief)Prosecution’s case-in-chief (which contains direct and cross-examination of each witness)Defendant’s motion for judgment of acquittalDefendant’s case-in-chiefJury instruction hearingInstructions to the jury by the courtProsecution’s closing argumentDefendant’s closing argumentProsecution’s rebuttal closing argument (if allowed)Jury deliberationJury verdict
17. SentencingShould the defendant be convicted, the next phase is sentencing. If he faces an aggravated sentenceof incarceration, certain facts that form the basis for such may require an additional trial to the juryor to the court.
Some courts sentence the defendant immediately after the verdict and some postpone sentencinguntil a later date so that both sides can prepare arguments and evidence in favor of or against aparticular sentence. Some sentences exceed the limits authorized by law; when this occurs, theexcessive nature of the sentence will form the basis for challenging it.
18. AppealIf convicted after an evidentiary trial, the defendant may have the right to appeal certain courtrulings. These include rulings on all pretrial matters, rulings on trial matters, and the sentenceimposed.
If the defendant enters a guilty plea pursuant to a plea agreement, he may not have any right toappeal. However, the defendant always retains the right to appeal an egregious or illegal sentence.However, appeals are not addressed in this book.
Did you find this article helpful? Do you think more information like this would help you? Moreinformation is available. This material is excerpted from The Criminal Lawyer's Job: A Survival Guide,2006, by Amber L. St. Clair, published by the American Bar Association General Practice, Solo andSmall Firm Division. Copyright © 2006 by the American Bar Association. Reprinted with permission.All rights reserved. This information or any or portion thereof may not be copied or disseminated inany form or by any means or stored in an electronic database or retrieval system without theexpress written consent of the American Bar Association. GP/Solo members can purchase this bookat a discount. Click here to purchase this book.
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Division Announcements | General Practice, Solo and Small Firm Division
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Division AnnouncementsVol. 1, No. 12
Division Name Change NoticeThe ABA General Practice, Solo and Small Firm Division hereby provides notice of its intent tochange its name to the Solo, Small Firm and General Practice Division, to be considered andhopefully approved by its membership at the Annual Meeting of the Division Membership to be heldat the 2012 ABA Annual Meeting in Chicago, IL. In addition, the ABA House of Delegates will alsoconsider and hopefully approve the change. The Division’s Council approved the name change at itsFall Meeting on October 21, 2011.
This change simply rearranges the descriptive categories in the current name. Lawyers that maintaina general practice, lawyers that serve in the military, on the judiciary, and in corporate counselpositions are and will remain vital, valued, and important members of the Division.
This name change will reflect and clarify that GPSolo is the home for solo and small firm lawyerswithin the ABA. Although it may be clear to active members of the ABA that GPSolo is the home ofthe solo and small firm lawyer, it may not be clear to lawyers who are new to the ABA, who arethinking about joining the ABA, or who have never been active in GPSolo.
By moving Solo and Small Firm to the beginning of the Division’s name, it will help the ABA bysending a clear message to the solo and small firm lawyer population (both within and outside theassociation) that the ABA, through the Division, is doing all it can to meet the needs of this under-represented population.
Other than revising the Division’s bylaws to reflect the name change, the internal structure andbylaws of GPSolo will remain the same. Any questions or concerns should be emailed [email protected].
New Email Address and Web AccessDue to the Division’s pending name change to Solo, Small Firm & General Practice Division, we nowhave a new email address ([email protected]) and a new web URL(www.americanbar.org/gpsolo). The main phone line contact to the Division remains the same at312-988-5648.
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Five Decades of ServiceVisit GPSolo’s new 50th Anniversary webpage that includes anniversary-themed articles inpublications, the House of Delegates Resolution, the GPSolo Day Declaration, a video of Past Chairs,photos, stories, displays, and upcoming events.
GPSolo Day DeclarationThe ABA Board of Governors met in New Orleans, LA, from February 2 to 3, 2012, and adopted thefollowing resolution to commemorate the 50th Anniversary of the General Practice, Solo and SmallFirm Division. It also proclaimed Wednesday, August 8, 2012, as Solo, Small Firm and GeneralPractice Day.
Click here to read the 50th Anniversary Declaration.
House of Delegates ElectionThe 2012–2013 Division Council will elect a new Division Delegate to the House of Delegates at theAnnual Meeting in Chicago, August 4, 2012. This is a three-year term to be filled through theconclusion of the ABA Annual Meeting in 2015. Nominations must be provided to the 2011–2012Division Secretary, Amy Lin Meyerson, in writing at least 10 days prior to the beginning of the 2012ABA Annual Meeting. She may be reached via mail c/o ABA General Practice, Solo and Small FirmDivision at 321 North Clark St., Chicago, IL 60654. The email address is [email protected],and the fax is 312-988-5711. No special form of nomination is required, and self-nominations areacceptable.
Solo and Small Firm Lawyers Caucus BreakfastThe Solo and Small Firm Lawyers Caucus Breakfast is sponsored by the ABA General Practice, Soloand Small Firm Division.
Sunday, August 5, 2012
7:30–9:00 a.m.
Swissotel Chicago
Chicago, IL
Please attend and contribute to this annual event, an ABA membership initiative for solo and smallfirm practitioners. The meeting is chaired by the Division’s vice chair and co-chaired by its threedivision delegates to the House of Delegates.
R.S.V.P. by July 31, 2012.
Registration is complimentary. Reserve your ticket when you register for the Annual Meeting. Welook forward to seeing you there!
Virtual Brown Bag SessionAugust 15, 2012
12:00 p.m.–1:00 p.m. Central
The General Practice, Solo and Small Firm Division’s Virtual Brown Bag Sessions are short, informaleducational events on timely GPSolo topics organized by committees and held entirely byteleconference as a Division member benefit at no additional cost. The sessions are held monthly,normally last one hour, and are held during lunch hours. Due to the informal nature of the programs,and the fact that accompanying written materials may not always be prepared and distributed, theDivision does not offer continuing legal education credits for these programs. Visit our website for
About GPSolo eReport
GPSolo eReport is a monthly electronicnewsletter of the ABA General Pratice, Soloand Small Firm Division that combineselements of Solo, The Buzz, GPSoloTechnology eReport, and GPSolo Law Trends& News. Its purpose is to to put clear,comprehensive, cohesive, useful, and timelyinformation into the hands of Divisionmembers.
Visit the ABA General Practice, Solo andSmall Firm Division
More publications from the GeneralPractice, Solo and Small Firm Division
Subscriptions
A subscription to GPSolo eReport is includedwith your $45 annual dues payment to theGeneral Practice, Solo and Small FirmDivision. You can join the Division by visitingthe ABA membership website or calling the at800-285-2221.
More Information
Copyright information
Advertise with us
GPSolo eReport Editorial Board Members
Contact Us
Thomas Campbell, Managing EditorAmerican Bar Association321 N. Clark St.Chicago, IL 60654-7598Phone: 312-988-5990Fax: 312-988-6135
Kimberly Anderson, DirectorAmerican Bar AssociationGeneral Practice, Solo and Small FirmDivision
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more information.
Recordings of this program and others will be posted on the Division’s website after each session.Please click here to listen to or download the audio.
For further information or if you are interested in holding a brown bag session, contact Dee Lee atthe GPSolo Division Office at 312-988-5659.
2012 Difference Makers Awards ProgramThe ABA General Practice, Solo and Small Firm Division (ABA GPSolo) is pleased to announce a callfor nominations for its annual difference makers awards program to recognize extraordinary lawyerswho “make a difference” by breaking down barriers for women, people of color, and people withdisabilities, regardless of sexual orientation. Applications are being accepted for the DifferenceMakers Award, and the following awards: Making a Difference by Breaking Barriers, Making aDifference through Community Service, Making a Difference through Pro Bono Work, and Making aDifference through Service to the Profession.
These awards have been expanded to honor local attorneys whose dedication has made a differenceto the profession or the community where the Division’s fall meeting is held. However, the winnersare not limited to only those in the local community. Rather than only recognizing solo and smallfirm lawyers or those working in the solo and small firm sections of local and state bars, theseawards are intended for any size firm lawyers, educators, judges, etc., who fulfill one of the followingaward categories.
Winners will be honored at the ABA GPSolo’s 2012 Fall Meeting and National Solo and Small FirmConference Awards Program at the Westin Seattle in Seattle, WA, on Friday, October 12, 2012.
For more information, review the 2012 Awards Summary and Instructions and complete the 2012Awards Application. Submit your nomination by August 31, 2012.
Jeffrey M. Allen, Editor-in-ChiefGraves & AllenOakland, California
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Division Meetings | General Practice, Solo and Small Firm Division
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Division MeetingsVol. 1, No. 12
ABA Annual MeetingAugust 2–5, 2012
Swissotel Chicago
Chicago, IL
Annual Meeting Registration is open!
Click here to view a full list of the Division’s activities at Annual Meeting.
Thursday, August 2, 201250th Anniversary Reception
6:00 p.m.–8:00 p.m. Central Time
Burnham Ballroom A at the Mid-America Club
200 East Randolph Drive, 80th Floor, Chicago, IL
You can purchase tickets when you register for the Annual Meeting.
Join us as we kick off the ABA Annual Meeting with our 50th Anniversary Reception at the Mid-America Club. You will enjoy food and drinks while you meet new friends and reconnect with oldones. We will also have guest speakers Dennis Archer and Karen Mathis both Past Presidents of theAmerican Bar Association & Past Chairs of the General Practice Solo & Small Firm. We look forwardto sharing this great night with you. See you there!
Tickets are $50.00 each.
Presidential CLE ProgrammingFriday, August 3, 2012SoloDay: Microsoft Word and Outlook for Solo/Small Firm Attorneys
8:30 a.m.–10:00 a.m.
Updates on LGBT Estate Planning
8:30 a.m.–10:00 a.m.
Solo Day: 90 Tips in 90 Minutes
2:00 p.m.–3:30 p.m.
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Historical Trial: Tokyo Rose—The Treason Trial of Iva Toguri D’Aquino
2:00 p.m.–5:00 p.m.
The Best Program for Real Lawyers by Larry Rice
3:45 p.m.–5:15 p.m.
Saturday, August 4, 2012Advising a Small Business
8:30 a.m.–10:00 a.m.
Mortgage Relief from Stay and Foreclosure in Bankruptcy: “Who Gets the Money?”
8:30 a.m. – 10:00 a.m.
Practical Magic: Real Estate Closings in a Post-Bubble World
8:30 a.m. – 10:00 a.m.
Defining Moments: Insights into the Lawyer’s Soul—Case Studies on LeadershipDevelopment for Lawyers
2:00 p.m.–3:30 p.m.
Elder Law, Estate Planning, and Probate: New Ideas to Expand and Excel Your Practice
2:00 p.m.–3:30 p.m.
A Global Practice for Everyone: Insights Into Creation and Management of OverseasOperations
2:00 p.m.–3:30 p.m.
Other ActivitiesFriday, August 3, 2012Keithe E. Nelson Memorial Military Law Luncheon
12:00 p.m.–1:30 p.m.
Swearing-in Ceremony for the US Court of Appeals for the Armed Forces
1:30 p.m.–2:00 p.m.
Saturday, August 4, 2012Annual Meeting of the Division Membership
8:00 a.m.–8:30 a.m.
Division Council Meeting
1:00 p.m.–5:00 p.m.
Sunday, August 5, 2012Solo & Small Firm Lawyers Breakfast Caucus
7:30 a.m.–9:00 a.m.
This is a complimentary event, but please reserve your ticket when you register for the AnnualMeeting.
Save the Dates!2012 Fall Leadership Meeting and National Solo & Small Firm Conference
About GPSolo eReport
GPSolo eReport is a monthly electronicnewsletter of the ABA General Pratice, Soloand Small Firm Division that combineselements of Solo, The Buzz, GPSoloTechnology eReport, and GPSolo Law Trends& News. Its purpose is to to put clear,comprehensive, cohesive, useful, and timelyinformation into the hands of Divisionmembers.
Visit the ABA General Practice, Solo andSmall Firm Division
More publications from the GeneralPractice, Solo and Small Firm Division
Subscriptions
A subscription to GPSolo eReport is includedwith your $45 annual dues payment to theGeneral Practice, Solo and Small FirmDivision. You can join the Division by visitingthe ABA membership website or calling the at800-285-2221.
More Information
Copyright information
Advertise with us
GPSolo eReport Editorial Board Members
Contact Us
Thomas Campbell, Managing EditorAmerican Bar Association321 N. Clark St.Chicago, IL 60654-7598Phone: 312-988-5990Fax: 312-988-6135
Kimberly Anderson, DirectorAmerican Bar AssociationGeneral Practice, Solo and Small FirmDivision
Jeffrey M. Allen, Editor-in-ChiefGraves & AllenOakland, California
Division Meetings | General Practice, Solo and Small Firm Division
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October 11–13, 2012
Westin Seattle
Seattle, WA
2013 ABA Midyear Meeting
February 7–10, 2013
Hilton Anatole
Dallas, TX
2013 Spring Leadership Meeting
May 23–25, 2013
Hotel Captain Cook
Anchorage, AK
2013 ABA Annual Meeting
August 8–11, 2013
San Francisco Marriott Marquis
San Francisco, CA
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CLE | General Practice, Solo and Small Firm Division
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CLEVol. 1, No. 12
For CLE teleconferences that GPSolo produces and cosponsors, please visit the Events &CLE page by clicking here.
Division CLE
More than 40 Hours of GPSolo On-Demand CLE Programming Available!
If you did not make it to the National Solo & Small Firm Conference in Denver, you can still view andreceive CLE credit from the programs. Topics include foreclosures, family law, consumer law, ADR,immigration, setting up a law office, PDFing your Practice and many more. To view the full list ofprograms and to purchase any programs please visit www.ali-aba.org/CT040 and choose “OnlineCLE.”
Free CLE Programs for All ABA GPSolo Members!
Immigration Hearings 101: A Complete Tool Kit for Representing Children in Immigration Court(Part 1)Immigration Hearings 101: A Complete Tool Kit for Representing Children in Immigration Court(Part 2)
Division TeleconferencesFor CLE teleconferences that GPSolo produces and cosponsors, please visit the Events & CLE page byclicking here.
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About GPSolo eReport
GPSolo eReport is a monthly electronicnewsletter of the ABA General Pratice, Soloand Small Firm Division that combineselements of Solo, The Buzz, GPSoloTechnology eReport, and GPSolo Law Trends& News. Its purpose is to to put clear,comprehensive, cohesive, useful, and timelyinformation into the hands of Divisionmembers.
Visit the ABA General Practice, Solo andSmall Firm Division
More publications from the GeneralPractice, Solo and Small Firm Division
Subscriptions
A subscription to GPSolo eReport is includedwith your $45 annual dues payment to theGeneral Practice, Solo and Small FirmDivision. You can join the Division by visitingthe ABA membership website or calling the at800-285-2221.
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GPSolo eReport Editorial Board Members
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Thomas Campbell, Managing EditorAmerican Bar Association321 N. Clark St.Chicago, IL 60654-7598Phone: 312-988-5990Fax: 312-988-6135
Kimberly Anderson, DirectorAmerican Bar AssociationGeneral Practice, Solo and Small FirmDivision
Jeffrey M. Allen, Editor-in-ChiefGraves & AllenOakland, California
Committee Highlight/Member Spotlight | General Practice, Solo and Small Firm Division
http://www.americanbar.org/publications/gpsolo_ereport/2012/july_2012/committee_highlight_member_spotlight.html[7/17/2012 10:56:42 AM]
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Committee Highlight/Member SpotlightVol. 1, No. 12
Committee Highlight
The Communications CommitteeThe Communications Committee, chaired by Alan Fowler and Stephen Williams, is among severalcommittees in Division One–Administration. The committee is responsible for management of theDivision’s Strategic Communications Plan. Committee members are tasked with educating theDivision’s leaders on how best to communicate the Division’s mission to the Division’s members,other ABA entities, and critical groups in the general public.
Some of the Committee’s objectives include promoting the Division’s vision and message platform asoutlined in the Division’s Communication Plan:
The Division is valued for its knowledge of the demands and opportunities faced by the generalpractice, solo and small firm practitioner. GPSolo provides easily accessible, relevant and timelyinformation and practice tools. Its unique contribution is its ability to know, package and deliverresources its members need and value for the way they practice. The Division serves and speaks forthe “Main Street Lawyer” to audiences within and outside of the ABA.
The committee collaborates with other committees to reach out to key audiences to amplify theDivision’s voice in communicating about new products, product innovations, member benefits, and soforth. It identifies and implements opportunities for the Division to communicate its knowledge aboutsolo and small firm practice and related topics, and works with the Division’s Media Relations liaisonto identify such opportunities. It develops key leaders on issues of importance to assure theDivision’s message is communicated successfully.
For more information, visit the Communications Committee webpage.
Member Spotlight
Lee S. Kolczun
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Lee Kolczun is and long has been a forceful advocate for the ABA to focus intensely on serving theneeds of solo lawyers. His passion for solos grows out of his own experience as a solo practitioner,from recognition that solo lawyers continue to be the most rapidly growing segment of the legalprofession, and from his years of leadership within the GPSolo Division, the Section OfficersConference, and the ABA.
Most recently, Lee was appointed to Chair the ABA Task Force that developed the Solo and SmallFirm Resource Center, a long-planned concept conceived by the GPSolo Division that finally isproviding important information and other services to solo and small firm lawyers.
As a presidential appointee in the 1990s to the Standing Committee on Solo and Small Firm Lawyers,Lee recognized that the ABA’s principal focus was on larger law firm members. Yet the growth ofsolos clearly pointed to a need for the Association to provide more and better services if it were tokeep pace with the profession. In 2004–05, Lee was elected Chair of what was then the GPSoloSection. One of his early endeavors was to help develop support for designating the Section as aDivision, which enabled outreach to all solo and small firm lawyers whose practices focus on manyareas of law.
Lee’s own legal practice centers on estate planning, probate, elder law, and workers’ compensation.The latter focus developed from his early work as Assistant Attorney General, Workers’Compensation Section of the State of Ohio’s Attorney General’s office. In that position, Leerepresented the Ohio Bureau of Workers Compensation and the Industrial Commission of Ohio intrials and Common Pleas Court, and in cases before the Ohio Court of Appeals and the Ohio SupremeCourt.
Lee also served as Assistant City prosecutor for the City of Lorain, Ohio. Earlier he was selected byUnited Airlines to participate in the company’s prestigious Management Development Program tolearn about all aspects of the airline operations before accepting a management position in Miami,one of United’s most profitable venues.
During his legal career Lee has been the name principal in a number of small firms that have focusedon workers’ compensation, estate planning, probate, and elder law, but he always returned to beinga solo practitioner. Throughout his career Lee has held leadership positions in or owned a number ofbusiness enterprises focusing on providing a range of support services to medical practitioners. Thisbusiness interest developed as a result of his efforts to support the extensive medical practices of hisorthopedic surgeon father and brother.
Lee earned separate degrees of Juris Doctor and Master of Business Administration from CaseWestern Reserve University and the Bachelor of Business Administration from the University ofMiami. Today he combines his entrepreneurial and legal experience as adjunct professor in theBusiness Division of Lorain Community College, teaching three or more courses each semester. Mostrecently Lee has worked to develop the Entrepreneurial Studies program, made possible through aseries of alliances with Case Western Reserve and the University of Miami, his alma maters.
From 2008–1011 Lee served on the ABA Board of Governors, with appointment to the Board’sFinance Committee. He also served as a member of the House of Delegates, first representing theGeneral Practice Division, and later as a member of the Board.
Business Ventures for Physicians is a publication that Lee coauthored with his brother, a physicianwith the Cleveland Clinic.
“I’m fortunate to be able to combine many and diverse interests into satisfying and rewarding work,”Lee noted. “My activities within the ABA have provided many opportunities to serve and lead in areasthat benefit the mainstream lawyer, who, after all, is the lifeblood of our profession.”
About GPSolo eReport
GPSolo eReport is a monthly electronicnewsletter of the ABA General Pratice, Soloand Small Firm Division that combineselements of Solo, The Buzz, GPSoloTechnology eReport, and GPSolo Law Trends& News. Its purpose is to to put clear,comprehensive, cohesive, useful, and timelyinformation into the hands of Divisionmembers.
Visit the ABA General Practice, Solo andSmall Firm Division
More publications from the GeneralPractice, Solo and Small Firm Division
Subscriptions
A subscription to GPSolo eReport is includedwith your $45 annual dues payment to theGeneral Practice, Solo and Small FirmDivision. You can join the Division by visitingthe ABA membership website or calling the at800-285-2221.
More Information
Copyright information
Advertise with us
GPSolo eReport Editorial Board Members
Contact Us
Thomas Campbell, Managing EditorAmerican Bar Association321 N. Clark St.Chicago, IL 60654-7598Phone: 312-988-5990Fax: 312-988-6135
Kimberly Anderson, DirectorAmerican Bar AssociationGeneral Practice, Solo and Small FirmDivision
Jeffrey M. Allen, Editor-in-ChiefGraves & Allen
Division Book Release | General Practice, Solo and Small Firm Division
http://www.americanbar.org/publications/gpsolo_ereport/2012/july_2012/division_book.html[7/17/2012 10:57:03 AM]
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Division Book ReleaseVol. 1, No. 12
The Complete Guide to Divorce Practice: Forms and Procedures forthe Lawyer, Fourth EditionBy Larry Rice and Nick Rice
Whether you're just starting out or want to build up your document library, this proven system is awinning strategy for your family law practice. This complete divorce practice system can easily becustomized to fit your jurisdiction and the way you handle cases, providing over 500 documents toefficiently take clients through every step of the divorce practice.
This book is so easy to use. It is arranged in the natural order of the divorce experience. Startingwith clients, it follows through the interview, proceeds through discovery, negotiations, mediation,trial and ends with prenuptial agreements.
Content includes forms, checklists, worksheets, formal motions, orders, pleadings, agreements, andletters in the following areas:
Law Office ManagementClientsClient InterviewComplaintsDiscoveryMarital Dissolution AgreementAlternative Dispute ResolutionTrial
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Division Book Release | General Practice, Solo and Small Firm Division
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Final DecreeMotionsPetitionsConsent OrdersOrdersMiscellaneous PleadingsLettersPre and Post-Marital Agreements
Included is a CD-ROM in Word format containing all documents to help save you valuable time.
Order it today!
$149.95 (Regular)$135.95 (General Practice, Solo and Small Firm Division) ABA Members. Log in now to receive thisdiscount!PC: 5150453ISBN: 978-1-61438-592-9
About GPSolo eReport
GPSolo eReport is a monthly electronicnewsletter of the ABA General Pratice, Soloand Small Firm Division that combineselements of Solo, The Buzz, GPSoloTechnology eReport, and GPSolo Law Trends& News. Its purpose is to to put clear,comprehensive, cohesive, useful, and timelyinformation into the hands of Divisionmembers.
Visit the ABA General Practice, Solo andSmall Firm Division
More publications from the GeneralPractice, Solo and Small Firm Division
Subscriptions
A subscription to GPSolo eReport is includedwith your $45 annual dues payment to theGeneral Practice, Solo and Small FirmDivision. You can join the Division by visitingthe ABA membership website or calling the at800-285-2221.
More Information
Copyright information
Advertise with us
GPSolo eReport Editorial Board Members
Contact Us
Thomas Campbell, Managing EditorAmerican Bar Association321 N. Clark St.Chicago, IL 60654-7598Phone: 312-988-5990Fax: 312-988-6135
Kimberly Anderson, DirectorAmerican Bar AssociationGeneral Practice, Solo and Small FirmDivision
Jeffrey M. Allen, Editor-in-ChiefGraves & AllenOakland, California
SoloSez Popular Threads | General Practice, Solo and Small Firm Division
http://www.americanbar.org/publications/gpsolo_ereport/2012/july_2012/solosez_popular_threads.html[7/17/2012 10:57:22 AM]
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SoloSez Popular ThreadsVol. 1, No. 12
SoloSez is the Internet discussion forum for solos and small firm lawyers. As the ABA’s most activeemail listserv, SoloSez features approximately 3,000 solo and small firm email subscribers discussingeverything from tech tips and legal opinions to what to wear to court.
The popular threads for June 2012 are:
Any Ideas When a Judge Just Doesn't Rule on Motions?
Military Suicide, ABA & Solos — A Challenge for You
PC (Potential Client) Asking for References??!
Pets in the Office
Putting Case Notes in the Cloud for Client Access
Three Sizes, Some Days
For past Popular Threads, go to http://www.americanbar.org/groups/gpsolo/resources/solosez.html.
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