Opening Statement: Broadway, here we come

By Julian Frazin
Michael Best & Friedrich • Entertainment Critic

May it please the court …

In the last few years many Broadway-bound musicals have had their initial tryouts in Chicago for fine-tuning before moving on to successful runs in New York - “The Producers” and “Movin’ Out” readily come to mind. Two others - “The Addams Family” at the Ford Center for the Performing Arts and “Banana Shpeel” at the Chicago Theatre - hope to take similar routes.

The Oriental Theatre, with its rococo, exotic décor, seemed the ideal setting for a musical based upon Charles Addams’ ghoulish characters created years ago in his off-beat New Yorker cartoons. So, I was anxious to see if this absurd and weird humor could be translated into musical theater.

All the ingredients are there - special effects with a carnivorous potted plant, an animated mop, Cousin Itt, and a love-starved giant squid in the cellar (I love my wife, but, oh, you squid!). Nathan Lane is perfectly cast as Gomez, the patriarch of the family, as is the beautiful Bebe Neuwirth in the role of Morticia, his vampirish spouse, and Adam Reigler and Krysta Rodriguez as their odd children.

The production, with book by Marshall Brickman and Rick Elice, has some a few musical gems, by composer Andrew Lippa, including an outrageous tango by the macabre couple and a bizarre love song as a floating Uncle Fester (Kevin Chamberlin) serenades his “true love” - the moon! And then there is the familiar finger-snapping theme from the TV series, an audience favorite. Unfortunately, the musical seems to lose all of its Charles Addams peculiar charm as it dissolves into a messy love fest, focusing on the love affair between daughter Wednesday and a comparatively normal boy (Wesley Taylor).

On the other hand, Cirque du Soleil’s “Banana Shpeel” may be beyond saving. Billed as “vaudeville, as you’ve never seen it,” I’m sure the show sounded better in its proposal than in production. Picture a few characters from the audience being brought up to “audition” for the show. An “impersonator” who imitates ordinary people, including someone with a sore knee, by limping about the stage, saying “ouch.” The “world’s oldest mime,” a decrepit old man, with a walker, who surrounds himself with an imaginary glass enclosure and then can’t remember which way to turn. And a ventriloquist with a deaf puppet who must respond in sign language! The show is rescued somewhat by some great acrobatic acts - it’s what Cirque du Soleil does best - and they should stick to it!

Although David Mamet’s “American Buffalo” has been performed many times since its 1975 premiere in Chicago, I doubt that you will ever see a better production than the one recently mounted at the Steppenwolf Theatre, 1650 N. Halsted, directed by ensemble member Amy Morton.

Along with a magnificent Kevin Depinet set depicting a disheveled junkshop, filled to the brim with clutter of every description, it has great performances by three superb actors - Francis Guinan (Don), Tracy Letts (Teach) and Patrick Andrews (Bob) - who are able to transform Mamet’s obscenity-laced script into a work of art.

The play is a Chicago tale of three down-and-outers who plan on robbing a coin collector to recover a valuable American Buffalo nickel, as well as other coins in his collection. It is filled with long ranting riffs of general complaint as well as stretches of humorous dialogue between Don and Teach. The ones where the two discuss how a friend cheats at cards (which he never does) and how to break into a safe ( though neither had done it before) are comparable to any Abbott and Costello routine.

Mamet’s works are known for their use of foul language, but when used, as here, with dramatic perfection, it becomes - like iambic pentameter - an essential component of the play.

Lookingglass Theatre’s world premiere at the Water Tower Water Works of “Icarus,” written and directed by David Catlin, is a well-intentioned but good example of “too much, too soon” and “more is less.” The play is an adaptation of the mythical Greek gods and the boy who flies too close to the sun. Despite the theater’s small space, it is filled with well- executed, but, in-your-face, acrobatic stunts, that I found very hard to take at such close range. And although it was a short play, presented without intermission, I often found myself looking at my watch - never a good sign.

I rest my case.

Final Verdict:
The Addams Family — 3 Gavels
Banana Shpeel — 1 Gavel
American Buffalo — 4 Gavels
Icarus — 2 Gavels

Ethics: Internet Misconduct by Attorneys

By Thomas McGarry and Thomas Sukowicz
Hinshaw & Culbertson

It was inevitable that attorneys would eventually be disciplined for engaging in misconduct by using the Internet.

The ability to purchase items online led to disciplinary action against several attorneys. For example, in In re Bromden, 07 CH 51, M.R.22065 (2008), an attorney was suspended for making unauthorized purchases of framed artwork, a radio, a stereo, a Lady of Justice statue and a coat over the Internet using his law firm’s credit card.

Internet gambling led to the disbarment of an attorney in In re Moore, 05 DC 1002, M.R. 20391 (2005). In that case, an attorney who was employed as senior pastor of a church obtained $44,000 from the church secretary by falsely claiming it would be used to grant financial requests from parishioners in need. The attorney used the funds for Internet gambling.

While in ages past an attorney might occasionally give a neighbor informal advice over the backyard fence, now attorneys are confronted with e-mail requests for informal advice.

In Attorney Grievance Com’n of Maryland v. Elmendorf, 404 Md. 353, 946 A.2d 542 (Md., 2008), an attorney encountered on an Internet dating website a woman who inquired as to whether there was any way to get around the requirement that the parties be separated one year in order to obtain a no-fault divorce. The attorney responded:

“You can file whatever you want so long as the parties say that it has been a year, the court won’t question it so long as the parties agree to that.”

The Grievance Committee found that the recipient of this statement could have reasonably construed it to suggest that the parties could agree to present false testimony to obtain a divorce earlier than permitted by law. Although the recipient did not recall seeing that e-mail or take any action in reliance on it, the attorney was reprimanded.

Lawyers’ websites can subject them to discipline. If a website contains false or misleading information, the lawyer could violate Rule 7.1 of the Rules of Professional Conduct. Other dishonest content in a website can also subject a lawyer to discipline.

In In re Kearns, 07 CH 42, M.R. 22840 (2009), a suspended attorney continued to maintain an Internet site identifying himself as an attorney and obtained a client who had contacted him after having reviewed the website. The conduct was found to be dishonest, and the lawyer was disbarred for this and other misconduct.

The use of e-mail could also result in attorney discipline. Rule 7.3 of the newly adopted Rules (effective Jan. 1, 2010) prohibits solicitation of potential clients by “real-time electronic contact.”

Sometimes the Internet activity constitutes a violation of the rule of professional conduct prohibiting attorneys from engaging in criminal conduct.

In In re Cirignani, 03 CH 56, MR.19983 (2005), an attorney was suspended for possessing controlled substances, a criminal act, having ordered Ecstasy and Xanax over the Internet.

Other attorneys have been disciplined for seeking illegal sexual contact with minors in Internet chat rooms.

In one case, In re Tatar, 01 CH 3, M.R. 18781 (2003), an attorney began using his computer to research a medical condition and first entered a chat room for patients with that condition. He later went into chat rooms to discuss sports and progressed to sex-related chat rooms. He went into a chat room involving underage girls on only one occasion, but that one occasion led to his arrest and conviction of child enticement based on his sexually explicit conversation with a girl during which he arranged to meet her to engage in oral sex.

In another case, In re Murphy, 07 CH 116, M.R. 22339 (2008), the attorney was convicted of indecent solicitation of a child after having used the Internet to arrange an intended sexual encounter with a 15-year-old child.

Both attorneys were stricken from their roles as attorneys licensed to practice in Illinois.

Other attorneys have been disciplined for possession of child pornography through the Internet.

In In re Davis, 06 CH 33, M.R. 22138 (2008), an attorney was suspended after being convicted for having visited websites featuring pornographic images of children and having downloaded images onto his computer.

In In re Schaeffer, 00 RC 1501, M.R. 16529, an attorney was disbarred for having downloaded images of underage females engaged in sexually explicit situations.

In In re Mateas, M.R. 18636, 00 CH 81 (March 19, 2003), an attorney was suspended for the misdemeanor offense of attempted possession of child pornography.

New technologies provide opportunities for making mistakes that could result in discipline. Think twice about the consequences of your use of computer technology when communicating with others.

Use the ARDC website or ethics hotline to research issues and to find answers to questions about your proposed conduct, or consult with a lawyer who practices in the area of professional responsibility law.

Counsel’s Table: A Dinner at the Top

By Mike Philippi
Ungaretti & Harris | Restaurant Critic

So someone suggested that I quit using this space to write about places I love and instead check out places I don’t know and see if they are any good. You know, like a restaurant critic.

I had heard a lot about Roof, which is the rooftop restaurant at the Wit Hotel, the new, hip hotel that opened last year. I approached it with an open mind, but secretly I expected it to be everything I can’t stand in a place — it is ultra-trendy, the new darling of the black leather and chrome crowd — it has cute names for things, like the menu (EAT) or the drink list (DRINK).

I was looking for STAND or SIT when it came time to find the restrooms. So I went there, and the food is okay and the service is spotty, but none of that mattered because it is an amazingly special venue.

There is some very nice indoor space with great views, but if it’s not raining or snowing, the action is outside. In keeping with the descriptive naming rights, ROOF should really be called FIRE because now that it’s chilly, the outdoor space has a million heat lamps that warm up the perimeter tables.

The eye-catchers are two long, communal, bar-like tables placed end to end with a little space in between. A gas fire runs down the center of each table. There is glass over the actual flames — so, sadly, there is no future in hanging out to see if any drunken frat boys will walk the hot coals — but it is warm, cozy, and very, very cool.

Plus, the place overlooks our beautiful city and is as smart and urban a setting for a drink and food as I have seen.

The food is a selection of small plates — some are pretty good, some are pretty ordinary. The best were the grilled lamb burgers. Three to an order, they are served with minted cucumber — more mint than cucumber and a little tomato-based “marmalata,” as printed on Roof’s menu.

Also on the pretty good list is the herbed sheep’s milk ricotta, which is hearty grill- marked toast with a peppery smooth cheese spread.

Like all good bars, Roof has fried mozzarella. But better than most, Roof’s ball-shaped fried mozzarella is crunchy on the outside and uses a better grade of cheese.

As a fan of cured encased meats, “Tasting of Salumi” is always on my must-try list. But because I tried it, you don’t have to. Paper-thin slices of what may have once been good, hearty pieces of salami were so thin that they dried out by the time they made it to the table.

The marinated olives were good and priced right at $5 a bowl. The big green, brown and black olives were very good bar-table food, not too salty. Like a lot of places, Roof also serves smallish flatbread-style pizzas. I tried the truffle one, which was good, but a little stingy on the truffles.

Sliders are getting to be a popular bar food. Roof serves up parmesan chicken sliders — served like the lamb burgers — good and plenty for the price, but nothing that you had to go to the top of a building to find. The fries, however, are worth the trip: a big, heaping basket of skin-on, salty fries with ketchup and pesto aioli for dipping. Perfect to go along with the great selection of ice-cold beers.

Bonus points for Roof: when all is said and done, it’s a really good hotel bar, which means giant flat-screen TVs for watching the game and a pretty good mix of locals and travelers. And the über cool people don’t come out until late night, so they can be avoided.

Lagniappe: Cibomatto, the second-floor restaurant in the Wit is a great place for a client lunch or dinner. Sleek and modern like its rooftop cousin, it offers the privacy of high-backed booths and an incredible ceiling photograph mural.

The food is foodie Italian — really good, but probably not like Mama made, unless Mama was named Spazzio. The space is beautiful, the salads crisp and fresh, and the paninis delicious. The whitefish was a nice lunch dish — beautifully presented with watercress and parsley and paired with a mild but flavorful sauce. Dessert included panna cotta latticello, which must be Italian for fresh citrus fruits on short bread with mint and crusted creme brulee. Whatever it’s called, try it.

Travelers Tip — There are two kinds of restaurants in New York: great and closed. Thankfully, Buon’ Amici is in the great category. This tiny (10 tables) family-run joint in lower Manhattan (40 Peck Slip) isn’t a place that the concierge is going to tell you about. Everything is homemade, from the pasta to the cannoli. The seafood is as fresh as it gets, and osso buco is fall-off-the-bone delicious. You will need to use all your fresh crusty bread to sop up every bit. Buon’ Amici is right around the corner from the Seaport and Pier 10, and a great part of Manhattan for us flatlanders. Get out of midtown and check out this place, which puts food and friendliness way ahead of trend and fashion — although does great marinara ever really go out of style?

Pleadings:
Roof (the Wit Hotel)
201 N. State St.
(312) 239-9501

Court costs:
Appetizers: $6-$16
Entrees: $7-$16

Final Verdict:
★★

Video: Tony Valukas talks about life and the law

Tony Valukas, Chicago Lawyer’s 2009 Person of the Year, reflects on his career and the profession, discussing the changes he’s seen and looking ahead to what’s in store in the coming year. In this interview with Olivia Clarke, Chicago Lawyer’s editor, the chairman of Jenner & Block also offered guidance for those new to the profession.

And once you’re done watching, you’ll want to read the Valukas profile in the latest edition.

Firm Life

By the Chicago Lawyer staff

Attorneys Jack Rovner and Kathy Roe have launched The Health Law Consultancy, a law firm focusing on clients in the health industry. It is at 20 N. State St., Suite 706.

Loyola University Chicago School of Law alumni Joseph A. Power Jr. (JD’77) and Todd A. Smith (JD’76) have made a gift of $2 million to the law school. The law school’s new ceremonial courtroom will be called the Power Rogers & Smith Ceremonial Courtroom, after their law firm.

Shefsky & Froelich has formed the private client group, which will concentrate on corporate law, real estate law, estate planning, and litigation. It will help clients with their financial and personal legal needs.

Holland & Knight has established the public and charitable service department. The newly established department will coordinate the firm’s community, charitable, and pro bono initiatives.

The Anti-Defamation League (ADL) Upper Midwest chapter has honored lawyers Abner J. Mikva and Newton N. Minow at the Fourth Annual First Amendment Freedom Award Dinner for fighting to preserve the five freedoms guaranteed to every American under the First Amendment. Minow, senior counsel at Sidley Austin, was chair of the Federal Communications Commission during the Kennedy administration. Mikva is a former U.S. representative from Illinois, White House counsel to President Clinton, and chief judge of the U.S. Court of Appeals for the District of Columbia Circuit.

Chicago Appleseed Fund for Justice and the Chicago Council of Lawyers have named Cook County Chief Judge Timothy C. Evans as their 2009 Commitment to Justice honoree; and Judson H. Miner, a partner of Miner, Barnhill & Galland and a founder of the Chicago Council of Lawyers, as the recipient of the Lifetime Achievement Award.

Martin, Brown, Sullivan, Roadman & Hartnett moves to 135 S. Lasalle St., Suite 3200.

Chicago lawyers Deborah A. Golden, senior vice president, general counsel, and secretary of GATX Corp., and Rebecca J. Wing, general counsel of Peregrine Financial Group Inc., are among 21 newly named members of the 2009 DirectWomen Board Institute.

At the 2009 Unity Award Dinner, Jerold S. Solovy, of Jenner & Block, was named the 2009 Unity Award Honoree; and Judge Shelvin Louise Marie Hall and William A. Von Hoene Jr., of Exelon Corp., were named the 2009 Advocate for Diversity Award recipients.

Professor Martin H. Malin, director of Chicago-Kent’s Institute for Law and the Workplace, has been appointed by President Obama as a member of the Federal Services Impasses Panel.

Dahl & Bonadies has relocated its offices to 30 N. LaSalle St., Suite 1500.

Jefferey J. Makeever, chair of the intellectual property practice and managing shareholder in the Rockford office of Reinhart Boerner Van Deuren, has been honored by Irish America magazine as a member of its Irish Legal 100 lawyers who have a passion for the law and pride in their heritage.

Tressler, Soderstrom, Maloney & Priess has changed its name to Tressler.

Latham & Watkins has appointed Richard A. Levy as managing partner of the Chicago office. He succeeds Stephen S. Bowen.

Winston & Strawn corporate partner James M. Neis received the Silver Cross Award from St. Patrick High School in Chicago for his commitment to the school.

The Illinois Human Rights Commission has hired William J. Borah as an administrative law judge. Borah will close William J. Borah & Associates, the employment law firm he has headed for 21 years.

Bradley D. Price, an associate at Johnson & Bell, has been elected to the board of directors of the Federal Bar Association’s Chicago chapter.

Clausen Miller associate Maria Z. Vathis, first-party property coverage claims, has been installed as first vice president of the Chicago chapter of the Federal Bar Association.

Michael M. Marick, a partner at Meckler Bulger Tilson Marick & Pearson who represents insurers in their disputes with policyholders, has been sworn in as a member of the board of directors of the Chicago chapter of the Federal Bar Association.

Jeffrey H. Cramer, former assistant U.S. attorney and senior litigation counsel in the Northern District of Illinois Eastern Division, has joined Kroll’s business intelligence and investigations practice as a managing director and head of the practice’s Chicago office.

Jerry H. Biederman, managing partner at Neal, Gerber & Eisenberg, has been elected chairman of the board of directors of Interlaw, a global association of law firms.

Associate Michelle M. Kohut, of Corboy & Demetrio, was elected president of Women Everywhere, a collaborative effort of nine women’s bar groups to plan and coordinate volunteer activities on behalf of high school girls and women and children in need.

Schiff Hardin announced that partner Renee Cipriano has been appointed to Illinois’ new Carbon Capture and Sequestration Legislation Commission.

The Illinois Supreme Court has reappointed Joliet attorney Elizabeth Hoskins Dow to the board of directors of the Lawyers Trust Fund of Illinois.

Partners

Cozen O’Connor has announced that Tia C. Ghattas, commercial litigation and co-chair of the firm’s transportation group, has been promoted to shareholder. She is managing partner of the Chicago office.

Kirkland & Ellis promoted the following attorneys to partner: James John Antonopoulos, corporate; Andrew Paul Bautista, litigation; Tanya E. Brady, corporate and real estate; Dominic DeMatties, tax; Andrew T. Dustin, litigation; Jamal M. Edwards, intellectual property; Wendy Netter Epstein, litigation; S. Maja Fabula, litigation; Laura B. Franzon, restructuring; Seth A. Gastwirth, litigation; and Amanda Hollis, intellectual property.

The firm also promoted to partner: Jared G. Jensen, corporate; Shira J. Kapplin, intellectual property; Deneese Walia Levin, corporate; Rachel Masory, corporate; Ari David Mintzer, corporate; John M. Muno, corporate; Jason Douglas Osborn, corporate; Stewart H. Patton, tax; E. Terry Platis, corporate; David Rokach, intellectual property; Joseph M. Russell, litigation; Arek Sycz, corporate; Min Wang, intellectual property; and Susan L. Welsh, corporate.

Moves

To Burke, Warren, MacKay & Serritella: associate Stephen R. Schuster, real estate; partner Mary Kruit McWilliams, wealth and succession planning, from McDermott Will & Emery; associate Andrew D. LeMar, litigation, from Dykema; partner Victoria R. Collado, consumer financial services class-action defense, from Mayer Brown; partner Richard L. Lieberman, tax advisory, from Deloitte; and associate David Y. Paek, litigation.

To Cogan & McNabola: partner Jon C. Papin, medical malpractice and personal injury, from Rapoport Law Offices.

To Swanson, Martin & Bell: partner Robert M. Collins, medical negligence and product liability, from Bollinger, Ruberry & Garvey.

To Pircher, Nichols & Meeks: partner Timothy J. McCaffrey, litigation, from Winston & Strawn.

To Hinshaw & Culbertson: associates Albert C. Angelo, products liability, personal-injury defense and premises liability claims; and Amee V. Patel, health care and employment, from the Illinois Department of Public Health. Also to the firm: associates Brian R. Zeeck, commercial litigation; and Ronald W. Hasinger, commercial litigation, federal litigation, and labor and employment.

To Epstein Becker & Green: associate Mark M. Trapp, labor relations and litigation, from the firm’s Washington, D.C., office.

To Jones Lemon & Graham: associate Jodi L. Ahlman, insurance/reinsurance and commercial and general litigation, from Butler Rubin Saltarelli & Boyd.

To Ulmer & Berne: partners Scott A. Meyers and David W. Porteous, litigation, and associate James G. Martignon, complex civil litigation, all from Levenfeld Pearlstein; and partner Randall D. Lehner, securities litigation and enforcement matters, from Reed Smith.

To Neal, Gerber & Eisenberg: patent agent and scientific adviser Kader S. Gacem, intellectual property, from Sonnenschein Nath & Rosenthal.

To Duane Morris: partner Steven J. Gray, corporate, from Sonnenschein Nath & Rosenthal.

To Ungaretti & Harris: of counsel Jonathan W. Harris, employee benefits and executive compensation, from BP America Inc.

To Coplan & Crane: associate Gerald J. Bekkerman, plaintiff personal injury, from Whiting Law Group.

To Barnes & Thornburg: partner Patrick M. Brady, white-collar criminal defense, from Deloitte.

To K&L Gates: partners Susan J. Greenspon and David A. Rammelt, in the corporate and commercial disputes practices, respectively, from Kelley Drye & Warren.

To the Chicago office of Krieg DeVault: partner Randall R. Fearnow, health care law and Medicare and Medicaid fraud and abuse, from the firm’s Indianapolis office.

To K&L Gates: partner M. David Short, liability defense; associates Caroline C. Plater, complex commercial litigation; Dawn M. Beery, complex commercial litigation, and James M. Reiland, commercial and complex litigation; and counsel Kenn Brotman, commercial and product liability litigation; all from Kelley Drye & Warren.

To Polsinelli Shughart: equity shareholder Mark A. Gershon, national vice chair of real estate development, from DLA Piper.

To Latimer LeVay Jurasek: partner Robert S. Minetz, litigation and appellate work, from DiMonte & Lizak; and associate Susan A. Stoddard, litigation, real estate, and corporate, from Gordon & Rappold.

To Michael Best & Friedrich: associates Ivan T. Kirchev, intellectual property, and Charmaine Butler, labor and employment relations.

To McGuireWoods: counsel Reuben L. Hedlund, corporate governance and shareholder litigation, from Hedlund & Hanley.

To Steptoe & Johnson: partner Thomas G. Pasternak, intellectual property, from DLA Piper.

To Kirkland & Ellis: partner Edwin S. del Hierro, bank regulatory, from Barack Ferrazzano Kirschbaum & Nagelberg.

To Dykema: associate Joel M. Koppenhoefer, professional liability and commercial litigation, has rejoined the firm.

Associate James M. Golden, general litigation matters, has also rejoined Dykema in its financial services litigation department, from Kirkland & Ellis.

To Ropes & Gray: partner Gregory R. Metz, private equity, from Kirkland & Ellis.

To Robbins, Salomon and Patt: associate William A. Castle Jr., commercial litigation, from Cummins & Associates.

To Brinks Hofer Gilson & Lione: associates Yuezhong Feng, patent validity evaluation, and preparation; Christian B.E. Hines, patent prosecution; Carolyn M. Rowe, patent litigation; and Jeremy Snodgrass, Tiffany D. Walker, and Tyler W. Webb, all patent, copyright, and trademark litigation.

To Thompson Coburn: partner Michael A. Parks, intellectual property, from Kirkland & Ellis.

To Ungaretti & Harris: associates Jennifer M. Carroll, health care, and Erica R. Cortez, litigation.

To Tressler: partner John Collen, commercial law, from Quarles & Brady.

To Greenberg Traurig: associates Richard M. Cutshall, investment management, corporate, and securities, from Seyfarth Shaw; and Michael R. Cedillos, litigation, who was a clerk for Judge Noël Anketell Kramer of the District of Columbia Court of Appeals.

Social Scene: 40 Under 40 Lawyers 2009

2009’s 40 Under 40 Lawyers enjoyed a reception at Hotel 71. Click on the photo to read the caption. Photos by Lindsay Macfarland.

Info Tech Law: Cloudy discovery

By: Alan S. Wernick, Esq.
FSB Legal Counsel

What happens to your data when it’s stored in a cloud computing environment? As many vendors are pushing cloud computing as the next evolution, many users are looking at cloud computing as a way to trim their budgets.

While there are many nuances to contracting for cloud computing, one aspect that is frequently overlooked is the e-discovery implications. Often the reason e-discovery is not considered during the contract negotiations is that it typically does not arise until some time after the contract has been executed by the parties. For example, when a third party requests the user to produce data stored in the cloud, the request may come as an e-discovery request in the context of a dispute between the user and a third party, or from third parties claiming to have an interest in data that the user controls or has the right to control in the cloud computing environment.

E-mail messages are a familiar example of data that may be stored in a cloud computing environment. While e-mail functionality and storage may be one set of deliverables in a cloud computing contract, there are many examples of e-mail storage presently being done in a cloud computing environment.

In a recent United States District Court opinion the court grappled with the issue of whether a court can compel an Internet Service Provider (“ISP”) to comply with a trial subpoena and produce the contents of the subscriber’s open e-mail messages that were less than 181 days old. After examining the provisions of the Stored Wire and Electronic Communications and Transactional Records Access Act (the “Stored Communications Act,” 18 U.S.C. §2701, et seq.) and the Wire And Electronic Communications Interception and Interception of Oral Communications Act (the “Wiretap Act,” 18 U.S.C. §2510, et seq.), the United States District Court, Central District, Illinois in United States vs. Weaver (July 15, 2009) held that a court can compel an ISP to comply with such a trial subpoena.

The Stored Communications Act (“SCA”) generally addresses accessing “electronic communications” from “electronic communication services” and “providers of remote computing services.” In Weaver, the court held that Microsoft, as an ISP, acted as both an electronic communication service and a provider of remote computing services in the providing of its Microsoft Hotmail accounts, and compelled it to comply with a trial subpoena.

The SCA defines an “electronic communication service” as “any service which provides to users thereof, the ability to send or receive wire or electronic communications.” A “provider of remote computing services” means under the SCA one who provides remote computing services “to the public … computer storage or processing services by means of electronic communication system.” In some instances, under 18 U.S.C. §2703, governmental entities must obtain a warrant to acquire certain types of electronic communications. In other instances a trial subpoena will suffice. For e-mail less than 181 days old (a statutory timeframe), the question of whether a warrant is necessary turns on whether the e-mail is in electronic storage or is held or maintained to provide a platform for computer processing services to the subscriber or customer.

The Weaver court focused on a distinction between web-based e-mail systems and other e-mail systems, and found a United States Court of Appeals Ninth Circuit opinion, Theofel v. Farey-Jones (2004), largely inapplicable. The Weaver court stated: “Users of web-based e-mail systems, such as Hotmail, default to saving their messages only on the remote system. A Hotmail user can opt to connect an e-mail program, such as Microsoft Outlook, to his or her Hotmail account and through it download messages onto a personal computer, but that is not the default method of using Hotmail. Thus, unless a Hotmail user varies from default use, the remote computing service is the only place he or she stores messages, and Microsoft is not storing that user’s opened messages for backup purposes. Instead, Microsoft is maintaining the messages ‘solely for the purpose of providing storage or computer processing services to such subscriber or customer.’ 18 U.S.C. §2703(b)(2). In the case of web-based e-mail systems, Theofel generally is distinguishable.”

The Weaver court examined the legislative history of the SCA and stated: “Thus, if the Stored Communications Act drafters intended e-mails a user leaves on an e-mail service for re-access at a later date to be covered by section 2702(a)(2), they also must have intended them to be covered by the Government’s trial subpoena power. Any other reading fails to reconcile these two sections of the statute.”

The applicability of the SCA and the Wiretap Act will depend on the facts of a case and whether a court will compel a party to comply with any discovery request based on these federal laws.

In Weaver, the court held that previously open e-mail stored by Microsoft for Hotmail users is not in electronic storage, and that the government can obtain copies of such e-mail using a trial subpoena.

The bottom line is parties may want to plan ahead in structuring their cloud computing contracts and consider the e-discovery implications in the design of the deliverables.

©Alan S. Wernick

Book Review: ‘The Organized Lawyer’

By Robert Yates

I decided to review a book called “The Organized Lawyer,” but I couldn’t find it. Couldn’t remember where it was, which is probably reason enough to find it and read it.

Okay, I’ve read through page 21, “Starting the Organizational Process,” and I’ve decided it’s time to clean my desk, to put all that stuff over there into a file folder, but the file folders are, let’s see, are, oh, yeah, in the second drawer over there. So you can see the problem I was likely to have with a book about getting organized.

Actually, the idea of reading a book on becoming organized doesn’t have a great deal of appeal on the surface. But “The Organized Lawyer,” written by Kelly Lynn Anders, associate dean for student affairs at Washburn University School of Law, comes across as a bright idea, rather than some dour drill sergeant ordering you to get squared away, mister, or ma’am. Guess what? It’s good and even interesting.

This is your friendly next-cubicle neighbor, teasing you about your mess and offering simple hints on clearing away the unnecessary stuff and organizing what needs to be on your desk. Honestly, it’s written in such a way that I keep looking around at my desk as I’m writing this review and shuffling things around and tossing stuff away. Which means writing this review is taking much longer than it should. All these little scraps of paper…

What’s bright about this book, in addition to the writing, is that Anders splits people into four groups, organizationally speaking: Stackers, who, according to Anders, “work best in workspaces with a lot of nooks and crannies” (Anders herself is a Stacker); Spreaders (like me), who need a lot of flat surfaces “because they like to have room to spread out current projects”; Free Spirits, who need places to store their items of interest so they don’t take over their workspace”; and Packrats, who “tend to like the full and cozy feel of a cluttered space.” (As a bonus, Anders provides a short questionnaire that allows you to determine which organizational type you are.)

The point of the organizational typing is that it makes no sense for, say, me to stack things up and pretend that’s me, only organized! It just wouldn’t work; that’s not how I need things to be for me to feel comfortable with all my stuff. Anders’ premise is that you are the organizational type you are for a reason, so go with it. But go with it in a way that allows you to relax and work more efficiently and effectively.

The book is filled with step-by-step processes to make your workspace and, by extension, you, more efficient. Some of the hints are very specific: for instance, buy a metal step file holder, which typically holds eight letter-size folders. Fill that file holder with eight differently colored folders for the things you need at a moment’s notice and those things that need, as Anders says, “a permanent home” on your desktop. And you’re on your way.

This is a short (146 pages), pleasant read and set up so you can skip around (as Anders encourages the reader to do) to find the stuff that interests you. But, most of all, it makes you conscious of the need to be organized and stay organized so that you can work better.

And now, after just one reading, my desk looks better already, if I do say so myself.

“The Organized Lawyer”
By Kelly Lynn Anders
Carolina Academic Press

Robert Yates is the editor of Chicago Lawyer and the Chicago Daily Law Bulletin.

Opening Statement: A modern-day passion play

By Julian Frazin
Michael Best & Friedrich • Entertainment Critic

May it please the court…

“The Ballad of Emmett Till,” written by Ifa Bayeza and directed by Oz Scott, made its world premiere recently at the Goodman Theatre. It stars the exceptionally talented Joseph Anthony Byrd in his Goodman debut as the ill-fated, 14-year-old, African-American boy from Chicago who was abducted, tortured, and brutally murdered for whistling at a white woman in Mississippi during the summer of 1955.

Staged simply on a set with few props flanked by huge panels evoking corrugated metal shantytowns, the powerful production is augmented by the dream-like projections of designer John Boesche. The first act is beautifully performed, almost as a poem, depicting the depressing, yet spirited life of black Americans in Chicago, as well as in the South. It ends with Emmett’s abduction and a foreboding, middle-of-the-night phone call to his mother.

The second act may be a little harder to take. It portrays the horrible tortures that the young man endured, turning this work into what I believe to be a modern-day passion play. We see Emmett being brutally beaten. At one point he turns to one of his tormentors and tells him, “I remember you. You gave me water.” At another point, some terrible instrument stabs him, leaving a ghastly wound in his side. And finally, there he stands, atop a raised platform, clothed in a dirty blanket, arms outstretched, pleading for help from his “father,” as he defiantly shouts over and over, “I shall rise again. I shall rise again,” before disappearing from the scene.

Just as the New Testament tells us that Jesus died for all our sins, I have no doubt that playwright Bayeza is telling us that Emmett Till died for our nation’s sins in tolerating the brutality and savagery of racial injustice.

On a lighter note… In 1941, “Tchaikowsky (And Other Russians),” a nonsense patter song with lyrics by Ira Gershwin and music by Kurt Weill, launched the career of Danny Kaye. Featured in the Broadway musical, “Lady in the Dark,” the show-stopping number, which mentions 50 Russian composers, was a masterpiece not only in its construction, but also in its performance - the indefatigable Mr. Kaye managed to get all the names out in rapid succession with hardly a breath in 39 seconds.

Now along comes multi-talented singer/pianist/writer Mark Nadler, who brought his one-man show, “Russian on the Side,” in a pre-Broadway run to the Royal George Theatre, 1641 N. Halsted St. Nadler tries to “one-up” the original by not only performing “Tchaikowsky,” but also by making it the basis of his 90-minute entertainment. He describes each composer with an interesting biographical anecdote and with a brief piano sample of each person’s work. All this is interspersed with sensitive and clever performances of works by contemporary American songwriters- including Gershwin, Sondheim, and Bernstein.

Now, I knew Danny Kaye. I saw him in movies and on television, where he performed his musical signature “Tchaikowsky,” many times. And I must say - Mark Nadler is no Danny Kaye. He is, however, the perfect Mark Nadler.

Whether he’s bouncing across the stage, cajoling the audience to love him, singing a classic show tune with a powerful stage voice, teasing the audience with a little piano shtick, a la Victor Borge, pounding furiously away like Liberace, or accompanying himself on the keys as he performs a soft-shoe from the bench - Nadler is the consummate entertainer.

Second City, Chicago’s most revered comedy institution, at 1616 N. Wells St., opened it 95th Revue, “No Country For Old White Men.” An obvious twist on this year’s Academy Award winner, it captured the essence of a presidential race in which John McCain is pitted against either Barack Obama or Hillary Clinton. With a title like that and all the political and social news swirling around us, how could Second City, known for its biting satire, possibly miss in its opening run-up through the November election?

But miss it did! With all that is going on - the campaigns, the war, the economy, the high price of gas, this production chooses to direct its attention to such topics as women being overcharged and bamboozled by a unscrupulous pair of car mechanics; a son confessing to his gay parents that he is Republican; a homeowner threatening to throw his realtor off a bridge because she refuses to take back his overpriced house; and, of course, the annual rant about the Cubs, who haven’t won a World Series in 100 years.

Hopefully, the cast will watch the news over the next few months and use their imaginations and improvisational skills to come up with some much more significant material as we approach what may be the most important election of our lifetimes.

I rest my case.

Verdict:
The Ballad of Emmett Till — 3 gavels
Russian on the Side — 21⁄2 gavels
No Country for Old White Men — 2 gavels

Lawyers take on new roles

By Olivia Clarke

Leslie Minier believes that minority female lawyers will stay at law firms if these firms make a stronger effort to provide better training, and better client interaction.

”You’ve got to give them the best possible opportunities to succeed,” said Minier, Katten Muchin Rosenman’s chief diversity officer. ”My goal is to make sure they have an opportunity.” Lawyers like Minier are taking on new roles in their law firms in an effort to further address, improve, and strengthen their firm’s commitment to such areas as diversity, pro bono, and professional development.

As law firms get bigger, many of them find that they must create these positions because committees just aren’t enough anymore. Instead, lawyers from these firms decide to either put aside their practices to handle these positions full-time, or split their time between practicing and handling their new roles.

Firms are creating these roles because they want someone to take their committees’ work to a new level.

And those who take on these roles have many times come up through the ranks, and understand what needs to be done.

”Historically every law firm in the city created a diversity committee,” Minier said. ”The diversity committee would focus on implementing the firm’s diversity initiatives and focus on recruitment and retention. Now the trend is, law firms are creating an administrative position. They realize it’s relevant and important, and they need to have someone focused on these issues.”

Trends in law firms
These positions are part of the increasing professionalism of firm management, said Bruce MacEwen, founder and publisher of the legal blog, Adam Smith, Esq.

”Basically firms are moving from sort of managing at the kitchen table on weekends to a more corporate style,” MacEwen said. ”If you take professional development, pro bono, and diversity, things like that, you might say they fall outside the four corners of the hard practice of law.”

”If you are serious about such things, they are not going to happen unless you have someone dedicated to being in charge,” he said.

Law firms continue to grow and many handle revenues in the multimillion- or billion-dollar range, he said.

Increased growth and increased complexity of business make it more difficult to manage law firms as they were managed in the past.

”You can’t run that on nights and weekends,” he said. ”My feeling is, it is not that law firms are emulating their clients, it’s just that they are finding that as they grow it’s increasingly difficult for practicing lawyers to run things themselves.”

Firms like putting their own lawyers in these positions because they understand the firm’s goals and culture, MacEwen said.

”I am pleased that it’s happening,” said Chris Percival, senior legal search consultant at Chicago Legal Search, Ltd. ”It is showing more sensitivity and more urgency. A large number of major clients are starting to request it. This is a more proactive way to handle it.”

She said she would rather see people do these jobs full-time because those who split their time may not be as successful.

The creation of these positions is another example of the corporatization of the law firm, said Brian Uzzi, Richard L. Thomas distinguished professor of leadership at Northwestern University’s Kellogg School of Management.

Law firms are creating positions that manage business relationships, as well as internal affairs — a trend that will only grow, Uzzi said. These positions provide greater efficiency, and help with compliance, he said.

The larger that firms become, the more scrutinized they are from within and outside the firm.

”This doesn’t mean that law firms have been doing a bad job managing diversity or they are violating implicit or explicit requirements about diversity,” he said. ”It may well be they are being proactive about doing the very best they can at it.”

Training and development
Charlotte Wager started at Jenner & Block in 1992, and has built her legal career at this firm.

She became director of professional development four years ago, which has become essentially a full-time job. This position includes handling associate development — mentoring programs, career development, and internal training. She works closely with the firm’s diversity and management committees.

She also co-chairs the hiring committee and oversees fall recruitment, year-round relationship building on college campuses with future lawyers, the summer program, and new associate orientation and transition.

”The best resources for associates who are trying to advance, and succeed, and try to be promoted are usually people who have been through that process themselves,” Wager said. ”I started my career here. I know about transition. I’ve been a summer associate, a first-year associate, a pregnant associate, a new-mom associate, a new partner, and a mom partner. The challenges that each one brings are slightly different. Having gone through them, I’m acutely aware and understand them.

”I think having been through it gives me credibility and gives me the communication edge that human relations directors alone do not understand.”

Since Kathy Morris stopped practicing law in 1981, she’s dedicated her career to other areas of the legal profession, such as, creating the director of professional training role in 1989 at Katten, and starting Under Advisement, Ltd., a career counseling service for lawyers, in 1988.

In October she became chief training and development officer at Sidley Austin.

Morris tries to organize, and institutionalize, as well as enhance and expand the firm’s lawyer training programs and career development initiatives.

She meets regularly with partners, committees, and associates, and gathers written information about what the firm has done. She is trying to prioritize the training and professional development initiatives.

Morris said it’s really important for lawyer training to expand beyond the junior level.

The firm, for example, conducted a program in December called, ”The Pocket MBA for Lawyers,” which was a webcast that addressed finance and accounting for lawyers with different levels of experience.

Morris is also organizing a master class program where those Sidley lawyers who present standout programs in one office will present those programs in other firm offices.

And in the Chicago office, the firm is offering 13 programs for credit in May and June to help attorneys meet their Minimum Continuing Legal Education requirements. Most of these programs are also available to clients, alumni, and attorney spouses.

”My vision is that Sidley will take its rightful place as national and international leader in this arena,” Morris said, ”and that the team we are building will contribute and persist into the future. For the field, in general, my hope is that more and more lawyers join the ranks of the many of us who already labor in these fields and that we will continue to share information.”

As the demands of being a lawyer loom larger every year, Lisa A. Brown said it becomes difficult for attorneys to find the time to mentor and train new lawyers.

But Brown said training can be very important to recruitment and retention, and it helped her develop as a lawyer.

She made the decision to pull back from her legal practice to become the partner-in-charge of associate development at Schiff Hardin - a position she took in January.

”I’ve grown up at the firm and so much of my identity is wrapped up in the firm,” Brown said. ”The mentoring and training I’ve gotten from people brought me along. That is what has really grounded me to the firm.”

Brown said she wants associates to feel comfortable talking with her about areas like juggling their workload, meeting future goals, and handling scheduling changes.

Being a successful associate is more challenging than ever because of the work demands, she said. The firm does a good job providing feedback, and associates want more of that.

She also interacts with senior management in implementing ways to improve associate development and retention. Brown may be called upon as a mediator when associates and partners must address potential communication breakdowns.

She also acts as a bridge for communicating and organizing different groups and programming that involve associates.

”In order to have a consistent approach to things like pro bono and diversity, [law firms] need to put people in positions to be an ombudsman or spokesperson,” Brown said. ”Given our level of commitment and investment in the associates of the firm, it is just not realistic for a lawyer practicing full time to be playing these roles.”

Pro bono efforts
Allegra R. Rich was a labor and employment lawyer at Seyfarth Shaw from 1995 to 2005, and then took about a year off.

During that time, she considered other career paths. She kept in contact with her firm’s managing partner and talked about potential career ideas.

The firm identified a need for someone to oversee its pro bono efforts and charitable foundation, and she became pro bono and philanthropy partner in January 2007.

Rich organizes the firm’s pro bono programs in its nine offices throughout the United States, and encourages each lawyer to participate in pro bono and community service. She also brings an overall strategic order to its charitable programs.

Dana Hill started in January as Seyfarth Shaw’s director of pro bono and philanthropy. She works with Rich, and also handles pro bono cases.

”Before we came into these positions, each office did its own thing with respect to pro bono and community service,” Rich said. ”Now people are more aware of pro bono activities; more aware of community service opportunities; and we are more organized in our events.”

Rich said they’ve encouraged each office to adopt one or two flagship charities that the whole office can participate in. They’ve seen a huge increase in pro bono hours, and community service events.

The firm also started a Seyfarth Shaw Community Service Award. In 2007, they received about 40 nomination forms, and about 25 people were nominated. The person who best demonstrated giving back to the community and making a difference received $1,000, an award, and $2,500 to donate to a charity.

”As a practicing attorney, it can be challenging to know who to exactly talk to about a pro bono case you are working on,” Hill said. ”Those associates and other attorneys who want to take on pro bono matters can talk to us.”

David Askew became the firm-wide director of pro bono and community service in April 2007 at Wildman Harrold — the first fully-dedicated attorney to lead the firm’s program.

He is a liaison between the firm’s lawyers and organizations looking for pro bono help. He also helps with the firm’s community service efforts, such as, its sponsorship activities and the legal and non-legal events it puts its name behind.

The firm adopted May Community Academy, a public school on the West Side, and Askew helps coordinate activities that the firm does with the school. For example, about 20 staff members recently volunteered their time during the entire workday, and he assisted in the scheduling of the visit and the assigning of work duties. He also volunteered his time.

Askew also helps connect lawyers interested in sitting on charity and not-for-profit boards and those organizations looking for help. He acts as a sounding board for lawyers who want to figure out how to best use their legal skills to do pro bono work.

”There is a risk, particularly in law firms, that you can be so focused on doing your job and billing your hours and doing things that are client-driven,” he said, ”that you don’t have the time or energy, or are not even thinking about, ‘How can I give back on the other side? How can I do things that kind of save the world?”’

More firms are hiring people for similar roles, he said.

”From an organized perspective,” he said, ”law firms are now saying, ‘Let’s be centralized, and let’s focus our efforts so we have a designated person to farm out the work, designate how it gets assigned, manage it, and be able to nurture these projects.”’

Marc Kadish was a clinical professor for about 20 years before Mayer Brown hired him in June 1999 to handle firm-wide pro bono and litigation training.

As director of pro bono activities, he looks for projects that will help lawyers benefit society. These projects include both litigation and transactional matters, but must combine pro bono work with the training of young lawyers. He also helps coordinate the firm’s financial contributions to legal public-interest groups.

As director of litigation training, Kadish works with the firm’s national litigation training committee, summer associate program, and orientation program for new associates.

For example, he helps organize multi-day interactive programs, like a recent deposition-training program for mostly second-year lawyers who work in the firm’s domestic offices and handle litigation.

Kadish said his job is to find pro bono work that moves lawyers — work they will sacrifice their free time for.

”In some sense I view myself as a salesman selling these projects,” Kadish said. ”When the lawyers are very busy on work, it is sometimes difficult to have them be involved in pro bono work, and, if you do involve them in pro bono work, you have to be careful to find work that really engages them, and is work they want to do.”

Creating inclusion
The Altman Weil Flash Survey on the Diversity Director Position in Large Law Firms, which was released in April, reported that 58 percent of participating law firms designated a diversity manager or director, up 8 percent from 2007.

Minier, from Katten, said she recognizes times in her life when someone laid the groundwork for her to meet her goals.

Without these people, she said, many opportunities would have been unreachable. She said she feels blessed that Katten has given her the chance to help advance others’ careers.

Minier founded Katten’s diversity committee in 2003, and in 2007 formed the Katten Leadership Institute for Women of Color. She was named in May 2007 the firm’s chief diversity officer.

She splits her time between practicing law and strengthening her firm’s commitment to diversity.

”I feel like it’s a natural extension of my responsibilities as a partner at my firm,” Minier said. ”It makes me even more passionate about what I do … I understand the goals and the vision of the firm. I understand how diversity fits with the strategic vision of the firm.”

Her roles include developing and promoting diversity goals and strategies; ensuring that the firm supports minority bar associations and organizations; developing programs that focus on the recruitment, retention and advancement of women and minority lawyers; and evaluating the firm’s policies and practices.

For example, she is looking at work allocation and whether all lawyers receive work that helps them develop their technical skills. She evaluates associate hours firmwide to assess how everyone is doing.

With respect to advancement, she wants to ensure that minority female lawyers receive the necessary skill development to go on client pitches. For example, the firm planned a communication program in May where a consultant would work on client pitch skills with minority female lawyers.

Cynthia Homan has spent her entire career at Brinks Hofer Gilson & Lione, and became its diversity shareholder in January. A member of the firm’s diversity committee, she wanted to get more involved in diversity issues.

She continues to participate in the diversity committee, and works with the committee to make sure diversity and women’s initiatives are carried out. She said her practice, which focuses on brief writing, makes it easier to juggle multiple roles.

Some of the activities she assists with include diversity training within the firm; and reworking the diversity and recruitment component of the firm’s website. She attends focused seminars on diversity issues, and reports back to the firm the information she learned from attending.

”I hope we get to a place where one day having this position or even having a diversity committee seems quaint and unnecessary,” Homan said. ”But more specifically and more today, I would like to help make sure Brinks is a leader in law firm diversity, and known as a place where every attorney that comes through the door is given the tools and guidance and comfort level to reach his or her potential.”

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