Diversity In Practice: Silence in the workplace

by Arin N. Reeves, J.D., Ph.D.
The Athens Group

I have a friend who is a practicing lawyer, a single mother, and a lesbian. Although she is completely open about her sexuality with family and friends, she has come out to only a few people in her workplace.

My friend serves on the diversity committee in her office, and she has developed a reputation as a passionate and consistent advocate for diversity.

When it comes to diversity issues in her workplace, she has always spoken up. When the diversity committee met this past May to discuss the addition of sexual orientation as a diversity priority, my friend remained silent.

Her colleagues on the diversity committee cited everything from ”we don’t have a gay problem here” and ‘’sexual orientation is a private issue, not a workplace issue” to ”we already offer domestic partner benefits” as reasons for excluding the category from their diversity efforts. The diversity committee has not yet made a decision, and my friend has not yet broken her silence.

An associate in a large Midwestern law firm traveled to California in late June to marry his partner of seven years.

He told his law firm he was going on vacation with a friend, and he knew before he left that pictures of his wedding would never be displayed in his office. His firm includes sexual orientation in its definition of diversity, but he has heard several comments from the partners for whom he works that suggest to him that it may not be fully safe for him to come out in the workplace.

A female in-house lawyer and her partner of 10 years adopted a baby from another country. When she went to her supervisor to request adoption leave, a progressive benefits program that was available to all employees, her supervisor asked her if she had been driven to international adoption because she couldn’t find anyone ”at home” who would ”allow” a lesbian couple to adopt a child.

She politely told her supervisor that they adopted a child from the country in which her partner had been born because that cultural connection was important to them.

Three different workplaces. Three different situations. Three different human beings. Yet, the common thread of gay and lesbian lawyers being marginalized in the workplace is illustrative of an all-too-common phenomenon.

That said, the pain of being marginalized for one’s sexual orientation does not stop at the feeling of being defined as separate from the mainstream; the pain is compounded by the pressure that many gay and lesbian lawyers feel the need to ”cover” their real selves so that the mainstream can be more comfortable around them.

In his book, ”Covering: The Hidden Assault on Our Civil Rights,” Kenji Yoshino defines covering as ”ton[ing] down a disfavored identity to fit into the mainstream.” He argues that ”with varying degrees of conviction, Americans have come to a consensus that people should not be penalized for being different … that consensus, however, does not protect individuals against demands that they mute those differences.”

Even in organizations that promote a solid commitment to diversity, there are subtle messages constantly communicated to people who are different from the norm that their differences will be accepted only as long as they are not ”too different.”

Sexual orientation is integrated into diversity efforts, but it is treated as a lifestyle choice instead of a personal identity. Inclusion of gay and lesbian attorneys is addressed in theory, but the tough conversations on heterosexual privilege and subtle homophobia are carefully avoided.

I continue to be surprised by the ongoing debate in workplaces about whether or not to integrate sexual orientation as a key diversity priority.

We seem to have accepted the mandate to work on racial, ethnic and gender diversity, but we still see the issue of sexual orientation as an option that we can choose to engage when it is comfortable and convenient for us to do so.

And, while we ponder our options, we expect gay and lesbian lawyers to ”cover” so that we can ponder in peace. My friend continues to serve on her diversity committee and continues to advocate for the valuing of differences even as she struggles with her painful decision to cover her own difference.

Covering is more about self-defense in an uncertain context than it is a personal choice to limit self-disclosure. Many gay and lesbian lawyers would cover less if they could trust their workplaces more. Covering exists when inclusion does not.

John F. Kennedy once said, ”If we cannot now end our differences, at least we can help make the world safe for diversity.”

As we engage in the intellectual exercise of exploring the different definitions of diversity, we have to be mindful that this debate on inclusion may be inherently exclusive. We may not resolve the differences on this issue in the immediate future, but we can pledge to make our workplaces safer for people to differ without having to cover while the debate on differences continues.

anreeves@athensgroup.net

Practical Matters: going big

by David M. Heilman
Clausen Miller

Remember when Wal-Mart first came on the scene? I always thought it was odd that you could buy mayonnaise and tires in the same aisle. Whether it is major financial institutions or cable and phone companies, it’s all about being big. Let’s get as much as we can from one stop, one mouse-click.

In the legal field we have the merger of one practice into another. This of course isn’t a recent trend. Mergers have been going on since, well, before the Cubs last won the big one. We all know what a long, long time that is. That seems to be changing in other sectors. In recent years — let’s say since the White Sox WON THE WORLD SERIES (damn caps button keeps sticking) — ”bigness” has come through the combinations of different fields/services/products under one roof or one parent.

How would that work with our field?

It would fall under the phrase ”multi-disciplinary practice group” or MDP. These are defined as businesses that offer both legal and non-legal services, such as law and accounting services. The Illinois Rules of Professional Conduct have certain prohibitions on this:

”A lawyer or law firm cannot a) share legal fees with a non-lawyer (with a few exceptions); b) form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law; c) permit a person who employs the lawyer to direct the lawyer’s professional judgment in rendering legal services; and/or d) practice in a firm owned in any part by a non-lawyer, where a non-lawyer is a corporate director or officer, or where a non-lawyer has the right to control the professional judgment of a lawyer.” Illinois Rules of Professional Conduct, Rule 5.4

It’s basically a way of keeping those non-lawyers out of our world.

Back in March 2000, the ABA Commission on Multidisciplinary Practice recommended letting them in.

Specifically, the commission asked that the ABA amend its Model Rules of Professional Conduct to permit MDPs. The ABA rejected that proposal, perhaps knowing that if you let one of those non-lawyers in you pretty much poison the well.

From a practical standpoint, most firms have no desire to enter a world beyond the practice of law. Many, quite defensibly, feel that a lawyer’s duty is serving the legal needs of his client and that running a business venture with different goals would interfere with that duty.

Owning an ancillary business may be easier to digest.

There are firms, big and small, that own other businesses but comply perfectly with the ethical canons. The other business does not control the decision making of the lawyers in any way and the legal fees are not shared with the nons.

One example comes right to you on your television screen, as Robert Shapiro of OJ fame tells us about the company he founded, called Legalzoom.com. That captivating ad makes consumers want to leap off the couch and dive into preparation of a new will, or better yet, a really cool trust.

Other firms have found new business coming from the procrastinating lawyer/consumer who is desperately seeking a quick CLE fix. These firms are selling DVDs and CDs, which provide all the CLE credit required for one low fee. They even take a charge card. Let’s see, very little overhead, continue your practice without interruption, and the money comes in from the retail side of the firm. Not bad.

Closer to the edge are businesses like Boston Law Collaborative (Bostonlawcollaborative.com). This is a multidisciplinary firm that provides dispute resolution, legal advice and representation, and multidisciplinary practices of psychology, finance, workplace consulting, and consulting/training for lawyers. There is no fee-sharing with non-lawyers and, importantly, no governance by non-lawyers over lawyers. If they did, they’d have to be beheaded.

Is there a trend starting, or are these exceptions?

There are a few factors that might contribute toward more business associations regardless of whether it would ever amount to enough to be called a trend.

1) Advances in technology, which make operating an ancillary business more manageable, especially those related to the legal field (Legalzoom, computerized trial presentations, etc).

2) Demands by consumers for ”one-stop” service, even in the legal field.

3) Expansion of law-related businesses. For example, the growth in mediation services has been tremendous over the past 10 years.

4) The ability — apparently — to have a multidisciplinary ”business” that do provide lawyer services while staying within the ethical guidelines.

5) The possibility that any, all, or many other factors in a rapidly changing society prompt reconsideration of the ethical guidelines on multidisciplinary practice. It isn’t beyond the realm, given that there was a recommendation to allow this eight years ago and it is permitted in Europe.

One thing is for certain — any change in our field would be verrrry slow. That’s where we differ from the nons, for better or worse.

But you never know. This could be the start of something big.

dheilmann@clausen.com

Ethics: threat of criminal prosecution

By Thomas P. McGarry and Thomas P. Sukowicz
Hinshaw & Culbertson

Illinois is among the states that prohibit the threat of criminal prosecution to gain an advantage in a civil matter. Rule 1.2(e) provides that ”[a] lawyer shall not present, participate in presenting, or threaten to present criminal charges or professional disciplinary actions to obtain an advantage in a civil matter.”

This is the first of a two-part series of articles dealing with Rule 1.2(e). This month we consider threats of criminal prosecution and next month we will consider threats of disciplinary action.

Sometimes, it is obvious that a threat of criminal prosecution is being made to gain an advantage in a civil matter. In In re Schaaf, 99 SH 64, M.R. 17387 (3/23/01), in an attempt to collect a fee, an attorney (who had become a part-time assistant state’s attorney) sent a letter to the client stating that he had filed a criminal complaint against her for theft of services, but that the sheriff will hold the warrant for one day.

If the client did not pay the fee claimed by noon on a certain day, ”the warrant will be entered and it will take a $500 bond to bail you out of whichever jail you are placed [sic] after arrest.”

Another example of an obvious quid pro quo is In re Kepple, 95 CH 876, M.R. 12026 (1/23/96), in which an attorney offered to dismiss the criminal charges he filed against another attorney in exchange for the dismissal of the civil lawsuit that attorney had filed against him and the clients for fees. He enclosed with the proposed settlement agreement a copy of Supreme Court Rule 761, which outlines the disciplinary procedures taken against licensed attorneys convicted of a crime.

In In re Mahon, 05 CH 8, M.R. 20379 (9/ 28/05), in connection with a client’s claim of sexual harassment against her former employer, the attorney prepared a ”press release” falsely stating, among other things, that his client had found child pornography on the company computer and that a criminal investigation was being conducted by various authorities.

In an attempt to obtain a payment of $1 million, the attorney told the employer that the police would be at two of its store locations the following day, that the police would be taking the company computers to arrest him and others, and that the press release would be printed in newspapers the following day.

Sometimes, the advantage in a civil dispute does not have to do with money. In In re Ras, 01 CH 18, M.R. 18605 (3/19/03), a lawyer who was president of a parochial high school and who disagreed with the decision to close the school, sent a letter to the principal of the school warning that his participation in the solicitation of donations exposed him to ‘’serious criminal liability” and suggested that he obtain legal counsel ‘’so that you may work a deal which will allow you to avoid hard time in jail.”

In In re Harmon, 04 CH 18, M.R. 20115 (5/ 20/05), an attorney on active duty in the U.S. Army Reserve refinanced the mortgage on his home.

In connection with that transaction, he sent a letter to the lender that purported to be from Major Richard L. Todd, who he falsely identified as his attorney, claiming that the transaction was subject to a statute that limited the lender’s ability to deny him and his wife credit.

The letter threatened to report the lender to the U.S. Attorney’s Office if it made any ”adverse or otherwise uncustomary credit determination” against Harmon.

Sometimes the threat is more indirect for example, if the civil matter results in a trial, criminal conduct will be disclosed.

In In re Ashbell, 03 CH 45, M.R. 19569 (9/28/ 04), an attorney who represented a client in a medical malpractice case responded to a motion to disqualify him from representing his client by saying that the doctor could face criminal charges if he persisted in the motion because the doctor’s alleged fraudulent billing would then be spread on the record. This was found to have violated Rule 1.2(e).

In another case in which a lawyer noted that the consequence of proceeding to a hearing would result in possible criminal activity being disclosed, the lawyer was not found to have violated Rule 1.2(e).

In In re Litwin, 95 CH 805, M.R. 13684 (5/30/ 97), in response to a former client’s demand for an accounting and a refund of any unused portion of the retainer, the attorney responded that he would provide an accounting, but that he would also seek payment of all fees, which would ”entail a court proceeding at which time I will have to explore all of your assets and income” and that ”unless you have filed an amended income tax return, which I hope you have, this examination may have an adverse impact upon you. Please consider this and advise whether you still wish to have a detailed description of service provided.” The Hearing Board found that this letter did not violate Rule 1.2(e).

tmcgarry@hinshawlaw.com
tsukowicz@hinshawlaw.com

The second part of the two-part series about Rule 1.2(e) will appear in the September issue.

Opening Statement: a donut shop with a story

By Julian Frazin
Michael Best & Friedrich - Entertainment Critic

May it please the court —
Steppenwolf Theatre Company ensemble member Tracy Letts has already won the Pulitzer Prize and Tony Award for his incomparable three-and-a-half hour drama about a dysfunctional American family (are there any other kind?), ”August: Osage County,” so the world premiere of his most recent work, ”Superior Donuts,” on the main stage at 1650 N. Halsted (through Aug. 24), was met with great anticipation.

Directed by Tina Landau, this modest production, at a mere two hours, features Michael McKean as Arthur Przybyszewski, a laid-back, yin-yang T-shirted, hippie relic of the ’60s who operates a small donut shop in Uptown that he inherited from his Polish parents who found it cheaper to call it ”Superior Donuts” rather than put the family name on the sign.

Enter Franco Wicks, a wisecracking, cocky young African-American, played with great enthusiasm and spirit by the very talented Jon Michael Hill.

Franco is highly imaginative, having already hand-written ”the great American novel,” on a bundle of assorted notepads and miscellaneous papers. He is full of suggestions designed to help Arthur improve the business, his appearance, and his social life including bringing poetry readings to the shop, changing his shirt, and cutting his hair. ”The only things that look good in a pony tail,” he tells him, ”are girls — and ponies!”

But Arthur is not interested in any improvements. He is unmotivated to change anything about his life, and this passive attitude led him into a loveless marriage, a home in the old Jefferson Park neighborhood, a divorce, and a six-year estrangement from his teenage daughter.

To help the audience more fully understand the character of Arthur, Letts has designed a series of soliloquies, taking the audience back to 1968, a year of great turmoil. Martin Luther King and Bobby Kennedy have been assassinated. We are in the middle of an unpopular war in Southeast Asia and thousands of our young people are vigorously protesting, ”Hey. Hey. LBJ how many kids have you killed today?” and ”Hell No I won’t go!”

Arthur, who was protesting the war, describes how he was beaten in Lincoln Park and hauled off to jail. Back then, he explains, the demonstrators were viewed as either draft protesters, draft resisters, or draft evaders, but all fell under the generalization, ”draft dodgers.”

Arthur tells how he fled to Canada, where he spent the duration of the war and remained until he was ”invited back home” by President Jimmy Carter, only to remain broken and unmotivated.

We hear a lot of tragic stories of the Vietnam veterans who, having endured the brutalities of warfare, were unable to return to their normal lives and wound up, in many cases, homeless or hopelessly addicted to alcohol and drugs. But what of those, like Arthur, who chose not to serve and had to bear the criticism of their families, fellow citizens, and the guilt of their own conscience.

Did they, like Arthur, fall into a life of quiet resignation, taking the path of least resistance and evading change and decisions?

This, then, is Arthur’s story as such a man who, when challenged to face a friend’s crisis, has the occasion to take strong action, fight for what he believes in, restore his own self-worth, and finally get on with the rest of his life.

Letts’ play brings to mind two American classics William Saroyan’s ”The Time of Your Life,” and Eugene O’Neill’s “”The Iceman Cometh.” While those two were presented in a bar and this in a donut shop, the similarity lies in the types of characters who come into this neighborhood hangout and interact with each other as they play out this human comedy, which has as much humor as dread.

There is Max Tarasov (Yasen Peyankov) a wild Russian, and his massive newly arrived nephew Karil (Michael Garvey). Max wants to buy the donut shop so he can enlarge his neighboring video store, which he claims is ”better than Best Buy” because he has something that Best Buy will never have ”the personal touch — and — Croatian pornography.”

There is the homeless, perennial A.A. first-stepper ”Lady” Boyle (Jane Alderman), who comes in every day for her free donut and coffee. Kate Buddeke brings a deep reality and vulnerability to the role of police officer Randy Osteen, who cares for Arthur and tries valiantly to bring him out of his shell. James Vincent Meredith is equally good as her fellow officer, James Halley.

Evil is represented by the slick Luther Flynn, a local hood (Robert Maffia), and his sinister henchman Kevin Magee (Cliff Chamberlain).

The city of Chicago is much in evidence as an unseen character-with many local references to sports teams, neighborhoods, and traditions and it has, in Letts’ style, a lot of laughs. It also has a fight scene that goes on too long and lacks any sense of reality. So it’s not another ”August: Osage County.” But, heck, what is?

I rest my case.

Final Verdict:
Superior Donuts ***

jjfrazin@michaelbest.com

Pro Bono: serious lawyer jokes

By Margaret C. Benson
Chicago Volunteer Legal Services Foundation

Haveyou heard the one about the two real estate lawyers, corporate privacy counsel, consumer protection attorney, prosecutor, and law professor who walk into a bar together? No? Well, how about the one where they get honored by the bar? It’s not as funny, but it’s a good story.

Every summer the Chicago Bar Association and the Chicago Bar Foundation jointly honor a pro bono attorney, a corporate attorney, a law professor, a government attorney, a legal aid attorney, and a young lawyer for their excepIllegal ‘X-value’ for character STYLs voided here tional commitment to professional excellence and equal access to justice. In a world that loves lawyer jokes, this year’s winners make for a great punch line.

Take the Maurice Weigle Exceptional Young Lawyer Award winner Grace Poe. A partner at DLA Piper, Grace handles real estate transactions and represents well-established, well-known clients.

In her spare time, she works to make sure that elections throughout the Midwest are fair and accessible to everyone, especially to those groups who, traditionally, have been disenfranchised. Grace is co-leader of the Lawyer’s Committee on Civil Rights Under Law’s Chicago branch of Election Protection.

During last February’s Illinois primary, Grace ran the group’s inaugural Election Protection hotline for Midwest callers, working with local election officials, coordinating volunteers and getting the word out about the hotline. She also organized all of the details for the day, from the room, computers, telephone banks, food and informational materials for the volunteers.

When the primary was over, Grace led a team to evaluate their effort, and is getting the hotline ready for this November.

If you don’t think she’s funny, what about Robert Deignan? Although Bob hasn’t qualified for a ”young lawyer” award for a few decades, he puts in the kind of hours that used to be reserved for associates striving for a corner office.

A real estate and construction attorney at Baker & McKenzie and chair of his firm’s pro bono committee, Bob, who won this year’s Edward J. Lewis II Pro Bono Service Award, leads by example.

As a volunteer with the Community Economic Development Law Project’s Nonprofit Legal Assessment Program, Bob has recruited, trained, and led teams of lawyers who perform comprehensive reviews of governing documents, contracts, and policies of area nonprofits. And just in case that isn’t enough, he has worked with corporate clients to establish their own pro bono projects.

And what’s more hilarious than a corporate privacy counsel? Minauti Mehta, a member of Abbott Laboratories’ legal department is winner of the Exelon Outstanding Corporate Counsel Award.

Minauti, who goes by Mina, coordinates and participates in weekend pro bono citizenship clinics, run jointly by Abbott Labs, Baker & McKenzie, and the National Immigrant Justice Center.

These clinics serve hundreds of low-income immigrants, many who are disabled and unable to speak English. Mina encourages her compatriots to represent clients at the naturalization interviews, and developed an advocacy training program for that purpose.

When you need a chuckle, look to our rollicking comedy team of the professor, the prosecutor, and the legal aid lawyer.

First, there’s Marguerite Angelari, this year’s winner of the Leonard Jay Schrager Award of Excellence, for her work on behalf of Chicago’s low-income elderly. Marguerite, the Goedert Elder Law Professor at Loyola University Chicago School of Law, created the school’s Elder Law Clinic, where students, under her tutelage, serve as court-appointed guardians ad litem or represent parties in disabled adult cases.

She also trains students who volunteer at the Loyola Pro Se Guardianship Help Desk, where they assist pro se petitioners with paperwork for disabled adult guardianships.

Prosecutor Sergio Acosta is the winner of the Richard J. Phelan Public Service Award. Former administrator of the Illinois Gaming Board, he currently serves as chief of the general crimes division of the U.S. Attorney’s Office. In addition to his professional duties, he has also volunteered at a homeless shelter, taught trial advocacy classes, and was a founding member and past president of the National Hispanic Prosecutors Association.

And rounding out this merry trio is Alan Alop, a 30-year veteran of the Legal Assistance Foundation of Metropolitan Chicago and a recognized expert on consumer protection law. Alan, winner of the Thomas H. Morsch Public Service Award, has not only fought the good fight on behalf of poor people for his entire career, he has trained, supervised and mentored scores of young attorneys, and collaborates with other programs so that attorneys around the state can use his knowledge of consumer protection laws to aid clients.

And speaking of serving the downtrodden, he’s a Cubs fan. Now that’s funny!

So, when you are looking for a good lawyer joke, picture these six attorneys, in a bar, being honored by their peers for their outstanding work. If that doesn’t make you laugh, throw in a talking parrot.

mcb@cvls.org

Financial Services: protecting investors

By James J. Eccleston
Shaheen, Novoselsky, Staat, Filipowski & Eccleston

Recently, the Securities and Exchange Commission published for public comment its proposed new rule aimed at protecting investors, especially senior investors, against the abuses associated with the marketing and sale of equity indexed annuities.

Sales of equity indexed annuities have grown dramatically in recent years, with $25 billion sold in 2007, for a total value of $123 billion of equity indexed annuities held by investors.

Let’s examine why the SEC is concerned, what it proposes to do, and how the proposed rule will protect investors.

First, the SEC is concerned because complaints associated with equity indexed annuities have risen dramatically. Commentators quip that the products are ‘’sold, not bought,” to imply that high-pressure sales tactics often are involved. State securities regulators identify the products ”as among the most pervasive products involved in senior investment fraud.”

Likewise, a 2005 notice to members issued by the National Association of Securities Dealers (now the Financial Industry Regulatory Authority) cited concerns ”about the manner in which persons associated with broker-dealers were marketing unregistered indexed annuities and the absence of adequate supervision of those sales practices.”

That notice also ”expressed NASD’s concern with indexed annuity sales materials that do not fully describe the features and risks of the products.”

A joint examination conducted in 2007 by the SEC, FINRA, and state regulators ”identified potentially misleading sales materials and potential suitability issues” related to investment products, commonly including indexed annuities, at so-called ”free lunch” seminars. Accordingly, working with state regulators, the SEC has made ”cracking down on fraud in this area a top priority,” and the ”proposed rulemaking is a big part of that effort.”

Second, let’s examine what the SEC is proposing.

As background, the challenge for the SEC has been to make a convincing argument that this kind of annuity is less of an insurance product and more of a securities product that should be regulated as a security.

Why the challenge? Sec. 3(a)(8) of the Securities Act provides an exemption for certain insurance contracts. Additionally, the U.S. Supreme Court has weighed in on what constitutes insurance, to be regulated by state insurance commissioners, and what constitutes securities, to be regulated by the SEC.

According to the Court, Congress intended to include in the insurance exemption only those policies and contracts that include a ”true underwriting of risks” and ”investment risk-taking” by the insurer. The assumption of a risk does not ”by itself create an insurance provision under the federal definition.”

With that Supreme Court guidance in mind, the SEC proposes: ”Individuals who purchased indexed annuities are exposed to a significant investment risk i.e., the volatility of the underlying securities index Indexed annuities are attractive to purchasers because they promise to offer market-related gains. Thus, these purchasers obtain indexed annuity contracts for many of the same reasons that individuals purchase mutual funds and variable annuities [both of which are securities], and open brokerage accounts.”

The SEC also addresses a feature of the equity indexed annuity that removes some risk from the product; a guaranteed certain minimum value to the purchaser. The SEC states that, although the insurance company guarantees this certain minimum value, that value typically is less than 90 percent of the money contributed.

As a result, the SEC concludes: ”Such indexed annuity contracts provide some protection against the risk of loss, but these provisions do not, ‘by [themselves,] create an insurance provision under the federal definition.’ Rather, these provisions reduce but do not eliminate a purchaser’s exposure to investment risk under the contract. These contracts may to some degree be insured, but that degree may be too small to make the indexed annuity a contract of insurance.”

Accordingly, the SEC proposes a new definition of ”annuity contract” that would define a class of indexed annuities that are outside the scope of Sec. 3(a)(8) of the Securities Act.

Third, how will this proposal protect investors? If adopted, investors no longer will suffer from the shortcomings of a patchwork of state insurance commissioners. Instead, equity indexed annuities purchasers will receive the full protection of the securities laws. Investors will receive ”the benefits of federally mandated disclosure and sales practice protections.”

More specifically, the SEC states: ”These investor protections include registration under the Securities Act, and our requirements related to truthful and complete disclosure of the investment to potential purchasers. In addition, investors would enjoy the benefits of protections against fraud and misrepresentation, and would benefit from additional safeguards against abusive sales practices by unscrupulous marketers. In the future, these protections may significantly reduce the problem of investors being harmed by inappropriate sales of equity indexed investments.”

Let’s hope so!

jeccleston@snsfe-law.com

Info Tech Law: Privacy and liability in a connected world

By Alan S. Wernick
Wernick & Associates

Computing connectivity is usually equated with convenience. Plug in the USB memory device you carry in your pocket to the company network, download the business data, and off you (and the data) go. Quick. Easy. And potentially fraught with legal risks and liabilities for you, the business, and the customer or client.There are a number of ways to get connected to data nowadays, including Universal Serial Bus (USB) devices, Bluetooth devices, Infrared (also called IR or IrDA [Infrared Data Association]) devices, Radio Frequency Identification (RFID) devices, WiFi (wireless fidelity), and hand-held hard drives that can hold many gigabytes of data.

Many of these devices are small enough to put on the end of a key chain or carry in a shirt pocket. Each of these devices can enable the user of the device to copy significant amounts of confidential personal data in less time than it took you to read this paragraph.

In the future, the myriad of electronic connectivity devices will be shrinking in size while increasing in storage capacity. Small, portable, high-capacity hard drives without any moving parts are already entering the marketplace. Consider the potential of a physician being able to carry a patient’s entire medical history in the palm of the hand along with, and integrated with, medical and drug interaction reference texts. And consider the potential of patients being able to carry a card in their wallet that has their entire medical history from birth to present. Now, consider the potential liabilities for the loss of this valuable data or the inaccurate recording of this critical data.

Various state legislators and U.S. Congress have given considerable thought and analysis to these potential risks and liabilities for this valuable, critical data. The federal laws include some familiar names, such as the Health Insurance Portability and Accountability Act, Financial Services Modernization Act (otherwise known as Gramm-Leach-Bliley), and Sarbanes-Oxley Act.

The courts are weighing in on this subject as well. When actual harm, either economic or physical, results from identity theft, the courts have awarded damages.

Indeed, a number of states have passed data-breach legislation. Businesses may also experience liability for damages as a result of failing to act in accordance with all of the applicable data-breach laws. Which data-breach law applies may depend on the residence of each of the affected individuals in the compromised database, and not the location of the entity that experienced the data breach.

While financial damages to a business from a data breach can be significant, they can pale in comparison to a potentially far more deadlier damage the loss of trust by those who entrusted you to protect their personal identifiable information. This loss of trust can potentially have a far greater negative impact on your business than any out-of-pocket financial damages award.

What can businesses do to manage the risks of liability for data breach as a result of interconnectivity? Steps for consideration include:

– Have a legal audit done by knowledgeable legal counsel (preferably one with a technology background and familiarity with data privacy, security, and compliance). A legal audit includes interviewing people in your organization, Illegal ‘X-value’ for character STYLs voided here reviewing your practices and procedures (for instance, reviewing your vendor contracts for data privacy and related risks), and identifying the strengths and weaknesses of your compliance with the applicable statutes and laws, as well as identifying potential risks regarding data privacy and data security.

– Have a security audit done by a knowledgeable security professional working with knowledgeable legal counsel. o Use encryption to secure the data at all times.

– Require users to use at least two security elements for interconnectivity access: (1) something they know a strong password (that is changed periodically), and (2) something they must carry with them (in addition to the interconnectivity device), for example, a security token that generates a unique random number linked to the network’s main server.

– Obtain appropriate insurance coverage for data breach losses.

– Educate users about data security and data quality.

– Finding the balance between interconnectivity and risk management for data privacy, data security, and data quality will not be easy. Putting together a team from within your organization along with outside advisers is one proactive, preventive approach to finding that balance and managing the risks. While this approach may be expensive, it will be far less expensive than the increased lost management time, and increased legal expenses involved in having a court or government agency handle the problem for you.

Interconnectivity issues will only increase over time as new technologies allow for new ways to access data. While the legal risks can be managed, they may not be entirely removed. It is a process. As the old Chinese saying goes, ”If you don’t know where you are going, any road can take you there.”

Which road will you take to connect with your data?

(C) 2008 Alan S. Wernick

alan@wernick.com

Counsel’s Table: Quality in the details

By Russell B. Selman
Katten Muchin Rosenman - Restaurant Critic

Years ago when I transitioned from my job with the Feds to a large prosperous D.C. law firm, I had some trepidation about fitting into my new surroundings. My sense of dread deepened when I went out to lunch with my new partners to an ersatz deli and watched as each of them took a pickle and, using their knives like scalpels, they cut their respective pickles into eight separate slices, and then used a fork to transition the slices into their mouths.

My ever-humble approach to fitting-in led me to use my mitts to pick up my pickle and thrust the pickle into my mouth and then chomp until completion. In that mandibular moment my die was cast I would not ever fit in, as this episode repeatedly played out over my brief tenure. (Indeed my secretary came into my office within 20 minutes of my infamous lunch faux pas and said as much: ”I’ve seen’em come and go and you are just a bit too interesting to stay.”) I realized that I was just not a ”monkey-see, monkey-do” kind of get-along guy so dear to the firm leadership.

I got my second wind here in Chicago and, while I have swell anecdotes from my past professional associations, I am now somewhat attentive to the local mores of my environs. When congratulatory e-mails go out over some major litigation win regarding how we prevailed in a Deep South litigation regarding the alleged misconduct of a notary using a rubber stamp rather than the historic embossing seal, I join in on the celebration congratulations sometimes I am even the first to e-mail, ”great job!” When in Rome, eat the spaghetti or else.

Such happy thoughts of fitting-in lubricated my hopes for C-House, the Chicago cousin of New York’s Aquavit restaurant. Aquavit is one of my favorite places, with an emphasis on Scandinavian-styled seafood, ”quiet” and superb presentations and an absurd (and very delicious) emphasis on herring.

I worried that the herring sacraments (and the very restrained and complex New York style) would be excommunicated by a Midwestern-style papal bull. Exactly how a herring might face such severe sanctions, I was uncertain but still worried.Location-wise, C-House is challenged. Located in a hotel nobody has ever heard of (the ”Affinia,” which sounds like a Latin medical phrase for irritable bowel syndrome) and next to one of those lousy pizza joints (that all Iowa tourists MUST visit), C-House is easy to miss off Michigan Avenue. Indeed, I had to push through a sweaty scrum of teenage burpers exiting the pizza inferno.

That said, life is funny sometimes, as C-House is as attractive as can be. Serene and confident styling dominates the living room/dining room with teak furnishings, copper orb lighting and nautical photos casually placed here and there. Oddly, the room feels important, almost like a UN diplomat’s lounge. Except here, all of the secrets are maintained in the chef’s cookbook.In the evening, the musical mood is set by Dido, at lunch it’s jazz and the atmosphere is sophisticated, upscale but warm. The starting courses, ”C-House tastes,” can be ordered individually but should be ordered in groups of three, five or seven for several dollars each. The wagyu beef taste is a swirl of deep, flavorful peppery emotion that had me plumbing the depths, and I only surfaced when a tart caperberry brought me back to the surface. The fish tacos are 21-jewel-like mechanisms of time using seasoned yellow tail enrobed in and underlain by corn -a totally perfect composition. Nothing flashy if the comparison is to a watch, we are talking Patek, not Rolex, with the quality inside.

At lunch, I had a crab sandwich that was d’bomb. The essence of summer present, better than the memory of summers past, and free of all restraint. Perfectly fried, bright with promise and totally unhinged a crab sandwich that I simply cannot lie about in the plain light of day.

Not all is perfection. A short rib-filled agnolotti was a bit pallid without the expected zing from the horseradish consomme bath. And a chorizo mac and cheese was hearty but a bit heavy. However, the seared tuna with sea urchin had me overlooking such inconsistencies, as the salty/sweet flavors extinguished the occasional missteps.

That C-House is excellent is not in question. The quality is in the small details, the wonderfully nuanced flavors, pretty presentations and quiet confidence. With an ever-increasing Chicago audience for fine dining, C-House should fit in very well and maybe one day, Chicago will get the herring.

Pleadings:
C-House
166 E. Superior, 312-523-0923

Court costs:
Tastes $ 3 - $6
Small Plates $ 9 - $16
Entrees $19 - $48

Verdict:
Four Gavels

Clifford’s Notes: Using video properly

By Robert A. Clifford
Clifford Law Offices

A 31-year-old man suffered traumatic brain injury when his cargo van was struck from behind by a school bus. During trial, the court admitted as demonstrative evidence a silent day-in-the-life film of less than five minutes of his going through physical therapy. Donnellan v. First Student, Inc., No. 1-06-2418 (1st Dist., decided June 19, 2008).

Despite the depiction of obvious pain, the court found that ”the very purpose of these videos is to illustrate evidence regarding a party’s life at the time of trial.” Id., at 7.

I have used video at trials and routinely include digital DVDs in settlement brochures. I recall the first time the court allowed a day-in-the-life tape to be run with sound because the court ruled that it accurately portrayed the plaintiff’s condition, and that its probative value outweighed any prejudicial effect.

It was the case of an 11-year-old Boy Scout who was severely injured in an accident while traveling to a Boy Scout jamboree. He lay in a coma for eight months with a broken skull and severe permanent injuries. That case resulted in a $14.2 million verdict in 1990.

As trial lawyers, we have moved from diagrams to computer animations, simulations, and reconstructions as the public becomes more technologically savvy. It is clear that, regardless of the type of presentation, lawyers must lay a proper foundation in introducing the evidence with experts or other witnesses.

Computer-generated animations generally are used to explain or illustrate a witness’s testimony and are allowed as a demonstrative aids with the proper foundation and after the court determines they are relevant, accurate, and not unduly prejudicial. More courts are accepting such animations, comparing them to charts or diagrams that are drawn by a computer instead of by hand or mechanically.

Although courts use the term computer animation interchangeably with computer-generated simulations, the latter typically are re-creations based on scientific principles and reliable data. The reconstruction of events really becomes a transference of data from one reliable medium to another reliable medium video that assists the jury in understanding engineering functions and other technical details through a fair and accurate depiction of the events.

In Illinois, a computer animation was allowed as demonstrative evidence in Dillon v. Evanston Hospital, 199 Ill.2d 483, 771 N.E.2d 357 (2002). The Illinois Supreme Court affirmed the use of video animation in explaining an expert’s testimony that depicted a bacterial infection in the heart that spread to the brain.

The court concluded that, even though the video displayed a type and location of infection different from the infections that the plaintiff might suffer in the ”the video animation would be helpful in explaining to the jury the general development of endocarditis, a condition for which plaintiff is now at risk.”

In a brief discussion, the Illinois Supreme Court found that cross-examination of the plaintiff’s expert about the videotape would have avoided any confusion for the jury.

Computer animations are being used routinely by lawyers in airplane crash cases, truck accidents and even in criminal cases. In Jones v. Kearfott Guidance & Navigations Corp., 1998 WL 1184107 at 3, 4 (D.N.J.1998), the court allowed the introduction of animated videos of eyewitness observations of a helicopter crash and of the simulated engine failure.

Not only did the court find them relevant, it held that the engine failure video was not hearsay because ”it is not a statement offered to prove the truth of the matter asserted; rather it is offered to illustrate the expert witness’s theory.” Id., at 4.

In Datskow v. Teledyne Continental Motors Aircraft Products, 826 F.Supp. 677, 686 (W.D. N.Y.1983), the court held that computer video demonstrations are permissible as demonstrative evidence to illustrate an expert’s version of the events so long as the jurors do not believe that they are ‘’seeing a repeat of the actual event” but instead understand that ”they are seeing an illustration of someone else’s opinion of what happened.” Id., at 686.

In quoting ”Jack Weinstein on Evidence,” the court reiterated, ”’If audio or visual presentation is calculated to assist the jury, the court should not discourage the use of it … Jurors, exposed as they are to television, the movies, and picture magazines, are fairly sophisticated. With proper instruction, the danger of their overvaluing such proof is slight.”’ Id., at 685, quoting, 1 J. Weinstein & M. Berger, ”Weinstein’s Evidence,” par. 403[5] at 403-88 (1992 ed.).

Generally, I introduce video demonstrative evidence under two circumstances: case-specific video that has been created in concert with the experts or treaters who vouch for its accuracy; or ‘’storeroom shelf,” ready-made video that is available and case-neutral that can be fairly used by both sides as an aid for the jury.

Certainly, video can be a powerful tool. The unique attributes of video animation and other types of moving images can be used at trial, with proper foundation and instruction, to better inform the jury of issues that may not be explained as well through diagrams and other one-dimensional demonstrative evidence. I would not enter a courtroom without this type of helpful evidence.

Closing Argument: Lessons from the big dog

By Peter S. Stamatis
Law Offices of Peter S. Stamatis

A little more than a year ago, Chicago lawyer Michael W. Coffield died at his desk. Mike was a friend and mentor to all and a lawyer’s lawyer. Those who had the privilege of knowing Mike knew that there was always some nugget of wisdom glistening in the frenetic frenzy. Mike was always teaching us how to be better better lawyers, better friends, and better people.

In the fall of 1996, I read an article in Chicago Lawyer about Michael leaving Coffield Ungaretti & Harris and going solo. On a lark, I picked up the phone and introduced myself.

”Call my secretary Monday and schedule a time to come over for coffee,” he said. With Mike, it was always that simple. Everyone was welcome.At our first meeting, Mike was gracious. He was always gracious. We drank coffee, he looked at my resume, and he talked about ”Moby Dick.” For nearly the entire next decade, I had the privilege of practicing law in the office directly next to his.

Mike was a mentor par excellence. Though it’s a certainty I missed many of them, here are 10 of Mike’s lessons, in no particular order:

Lesson 1 Always be civil.

”Do you know who is the most important person in a courtroom? It’s not the judge — it’s the judge’s clerk. Treat the clerk better than you treat the judge.”

It’s doubtful that there has been a lawyer in the history of Chicago who befriended more adversaries than Mike Coffield. Of course, Mike fought hard for his clients. But when a case was over, his opposing attorney was usually added to his list of friends. Many would come to him for advice.

Lesson 2 Dress like a lawyer.

No one dressed better than Mike. His haberdasher shed many a tear at his funeral. Mike never bought in to ”casual Fridays,” and when I’d show up to the office in jeans, he’d shoot me a look that said, ”C’mon Peter, you’re a lawyer. You don’t work at the rodeo.”

Lesson 3 Read.

Mike was an avid reader of The New York Review of Books. Whatever interested him, he bought, reading multiple books at the same time.

”I’ve got one going in the bedroom, one in the bathroom, one in the car, one in the kitchen, and one at the office.”

He read novels, history, politics, and art, and encouraged everyone to do the same.

Lesson 4 Share, and don’t keep score.

Mike couldn’t just take one person to lunch. He’d take everyone to lunch. If a book sounded especially interesting, he’d order multiple copies and hand them out. He bought tickets to just about everything and gave most of them away. And most importantly, he never kept track of any of it.

Lesson 5 Leave something on the table.

Many believe that the best negotiators are those who can squeeze the last nickel out of a transaction. Mike didn’t. ”Always take the long view. You are better off at the end of the day with a little goodwill than you would be with the few extra dollars.”

Lesson 6 Lead.

One might think that Mike’s selflessness might have made him a human doormat. Not the case. He was honored constantly and elected president of just about every organization he ever joined, accepting each role with vigor, throwing himself wholeheartedly into and improving everything he touched.

Lesson 7 Think of others.

Mike was lavish in his praise and congratulations, usually by way of a personal note scribbled with huge letters in blue, green, or purple marker. And no occasion was too small to celebrate: ”Congratulations, I heard you had lunch yesterday. I wish you all the best. Mike.”

Lesson 8 Mentor.

Mike was proud of his role in the Inns of Courts and its mentoring of young lawyers. ”How does one pay back a mentor?” he once asked. ”The only way to do it is to pass along what you’ve learned to someone else. Pay it forward.”

Lesson 9 Take it as it comes.

Mike had his fair share of challenges, especially in the last few years of his life. In handling the steady deterioration of his wife’s health due to Alzheimer’s disease, not to mention living with his own health issues, he never whined. ”Getting old ain’t for sissies,” is all he’d say, quoting his mother.

Lesson 10 Leave ‘em wanting more.

”The best place to sit at a party is with your back to a wall and with a clear shot of the door. From there, you can see people come and go and can spend at least a little time with everyone.

”And when do you leave? Leave right at the point when you’re having the most fun you ever had. Why leave then? First, it’s never going to get any better. Second, leave when everyone still wants you to stay. Leave ‘em wanting more.”

These, of course, were just a few of Mike’s lessons. But when you boil everything down, perhaps the greatest lesson was to enjoy being alive. Mike did that by living ”big,” adopting what can only be called the ”Golden Rule Plus:” Treat others better than you could ever hope to be treated.

And that was, perhaps, his greatest lesson.

« Previous Page — Next Page »