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September 9th, 2016

Harnessing the power of mindfulness to elevate our practice in stressful legal work environments

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By Cynthia Pong, Esq.

The stress of working in a high-stakes legal environment often negatively affects employees and office culture. Just as a cotton ball placed in a glass of water will absorb the water, individuals working within high-stress legal environments will absorb the stressful energy surrounding them. Whether we want to admit it or not, our workplace environments affect us.

As I discussed in my Lawline webinar, Ethics in a High-Stress, High-Stakes Legal Work Environment, stress can manifest itself in many different ways in lawyers. It can zap productivity and creativity, hamper employee engagement, and lead to employee attrition. Lawyers and legal staff may appear exhausted, checked out, burnt out, overwhelmed, frustrated, and defeated. They also might feel these ways inside, but cover it up in front of others.

It’s the cold, hard truth that there is a strong correlation between being a lawyer and depression, mental illness, and suicide. The troubling statistics are related to, and can often reinforce and exacerbate, stressful work environments.

There are a number of important reasons to be concerned by the level of stress in many of these law offices, firms, and legal organizations. These reasons include ethical ones. Model Rule of Professional Conduct 1.1 requires that lawyers “provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Rules 1.3 requires that lawyers “act with reasonable diligence and promptness in representing a client.” Furthermore, Rule 5.1 requires lawyers with any kind of managerial or supervisory role to ensure that line attorneys comply with the Model Rules.

Although we often do not think of the ethical rules in very expansive ways (to the contrary, most conversations about ethics and the law are focused on the bare minimum that lawyers must do in order to avoid violating the rules), I urge my fellow lawyers – particularly those in management – to start thinking about these rules more broadly. We should be thinking about elevating the “reasonableness” standard in Rules 1.1, 1.3, and 5.1 so that we are constantly looking for ways to improve our practice for our clients, ourselves, our organizations, our profession. We should be aiming higher.

So what’s the solution here? How do we ensure that we and our colleagues in our legal organizations aren’t allowing our legal work to suffer as a result of excessive levels of stress in the workplace?

Fortunately, mindfulness and the practice of mindfulness meditation provide a way forward for us.

The practice of mindfulness offers a multitude of benefits to the individual lawyer. For example, regularly practicing mindfulness will elevate lawyers’ litigation and negotiation practice by helping them hone their listening, observation, and coping skills. A regular practice of mindfulness will also decrease overall stress reactions and rewire the brain in order to function at a more efficient level on a day-to-day basis. (For more information on mindfulness, visit embracechange.nyc) These critical improvements to individual lawyers will then raise the level of practice at the entire legal organization, propelling it forward.

Lawyers and legal organizations that want to succeed, thrive, and flourish need to consider mindfulness as a way to address the stressful environments in which they work. And if we find that we or our colleagues are too stressed to do our best work and do not (or cannot) prepare clients’ cases to the best of our ability, then Rules 1.1 and 1.3 should be a reminder to us to practice mindfulness to step up our legal work, while protecting – and, in fact, improving – our mental or physical health.

For more on how high-stress legal work environments hurt legal organizations, how the ethical rules are implicated by this, and how to take back control in your work and personal life, watch Ethics in a High-Stress, High-Stakes Legal Work Environment and visit embracechange.nyc!

Citations:

http://embracechange.nyc/blog/2016/8/1/the-case-for-building-community-within-legal-organizations
http://www.nytimes.com/2016/02/05/business/dealbook/high-rate-of-problem-drinking-reported-among-lawyers.html?_r=1
http://interventionstrategies.com/17-statistics-on-drug-abuse-among-lawyers/.

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Michael Corsey

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July 28th, 2016

Interview with Attorney Kim Kalmanson Regarding the Supreme Court’s Recent Decision in Spokeo v. Robins

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On March 23, 2016, a team of respected professionals came together in the Lawline studio to discuss the issue of standing in data privacy class actions. Attorneys Deborah Renner and Kim Kalmanson, joined by economists Sarah Butler and Dr. Garrett Glasgow, reviewed two standout cases, the 7th Circuit’s Remijas v. Neiman Marcus and Spokeo v. Robins, pending in the Supreme Court. On May 16, 2016, the Supreme Court issued an opinion on Spokeo.

Recently, I had the pleasure of speaking with attorney Kim Kalmanson about the Supreme Court’s decision in this case. We discussed the breakdown of the decision, the dissent, and the potential future impact of the case. Take a look:

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January 4th, 2016

Accidents Happen: Working with the NTSB During an Investigation

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By Michael Singer

Edited by Shaun Salmon

You’re sitting at your desk when your phone rings. There’s been a tragic accident involving multiple fatalities somewhere in the transportation system. You determine a client is involved in some manner. You ponder the civil and/or criminal investigations, lawsuits and damages in the years to come. But, at the same time, if you’re really on your game, you realize your client may be a part of an investigation involving the National Transportation Safety Board (NTSB). You’ll want to know how best to advise your client as they embark on the NTSB investigative process. And if you don’t know where to start, you can’t do better than Thomas W. Tobin’s (Wilson Elser Moskowitz Edelman & Dicker LLP) Lawline Industry presentation The Anatomy of a National Transportation Safety Board (NTSB) Investigation. In just over 90 minutes, Tobin explains just how this unique federal agency, familiar to many but understood by few, works.

“God on the scene”: As Tobin asserts from the outset, “Once you understand what motivates the NTSB, it’s a lot easier to work with them.” This unique, but ubiquitous, federal agency has complete independence. Its primary mission is not to assess blame, but to avoid another accident resulting from the same cause. They do this by investigating the probable causes of accidents and issuing recommendations. With few exceptions (involving the FBI or U.S. Coast Guard) they have investigative priority over all other federal agencies at the scene of an accident. As Tobin observes, they are effectively “God on the scene.” Though this agency has no regulatory authority, 80% of their safety and remedial recommendations are adopted by industry and governments. They achieve this record of success via a reputation for thoroughness and effective use of the bully pulpit, using both traditional and social media to push the safety agenda. See, e.g., the annual release of the agency’s “most wanted” list of safety enhancements.  

Helping your clients and the NTSB, simultaneously. When the NTSB becomes involved in an accident, the agency will send a “Go-Team” to the accident scene, which will include an Investigator-in-Charge (IIC), to establish order, designate the parties and the coordinators for each party and divide all into investigative groups (for example, one group might investigate human activities involved in the accident; another, the mechanical aspects of the accident; still another, the event recorders, such as black boxes). A party can be a person, government agency, company, or association whose employees, functions, activities, or products were involved in the accident and can provide suitable qualified technical personnel to actively assist in the field investigation.

Once so designated, your client will have an opportunity to participate, via your coordinators, in the factual investigation. Doing so means your client will have an opportunity to shape the eventual NTSB factual findings. An entity that becomes a party to an NTSB investigation must be fully committed to transparency, truth-finding, and rapid response. As an attorney, your focus is limiting client exposure. So for you, this process might seem at odds with your client’s legal position. If the NTSB asks for information, it wants the information now, not after you have had time to review and consider the liability consequences of releasing it. The upside is that the NTSB may make remedial recommendations during the investigation that could actually help your client avoid additional liability should a dangerous condition need to be corrected. As Tobin points out, he finds he is able to serve his clients and help the NTSB at the same time.

10 things your client needs to do as a party to an NTSB investigation: Tobin’s review of the NTSB’s party system is invaluable listening; suffice to say that if your client is a party to an NTSB investigation, complete cooperation and transparency with the IIC and the various Group Chairs are obligatory—withholding information is forbidden and can result in public castigation, which will not help your client’s litigation position. Here are Tobin’s top ten recommendations for a party to an NTSB investigation to assist the agency and to help itself:

  1. Understand the responsibilities of the IIC and Group Chairs
  2. Keep copies of the documents you provide
  3. Respond swiftly, and make sure of accuracy of your responses
  4. Assume all communications with the NTSB will be public (because they are)
  5. Choose your party coordinator and specialists carefully
  6. Work closely with your coordinator and specialists
  7. Be open to opportunities for interim remedial action
  8. Vet the draft Field Notes and Group Factual Reports carefully (for accuracy)
  9. Prepare extensively for any public hearing (as if it were a trial)
  10. Submit Proposed Findings & Recommendations

In the end, everyone involved in the transportation system wants the unattainable goal of perfect safety. When that goal fails, as it ultimately does, working with the NTSB can be a great way to get back on track…or on the road again.

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Sigalle Barness

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December 7th, 2015

So, a Needle Pulling Thread? Not Anymore: 3D Printing, Fashion Future and the Law

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By Michael Singer

Edited by Shaun Salmon

Just in time to return that hideous sweater you got this holiday season, Rania V. Sedhom (Sedhom Law Group, PLLC) has peered into the fashion future. In that future, clothes will be printed not sewn, discounts will be a thing of the past and the idea of returning something you bought will be as quaint and old-fashioned as landline telephones. In 3D Printing and the Fashion Industry: Will Things Ever be the Same?, Sedhom poses and answers that question (an emphatic “no”), and also observes that the future is coming a lot faster than one might think, what with Karl Lagerfeld and other fashion design companies embracing printing over sewing. Of course, technology being what it is, this emerging field will not arrive without its share of legal issues, which Sedhom brings to the fore. (more…)

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Sigalle Barness

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October 29th, 2015

No Fib: Automatic External Defibrillators Often Save Lives, Even While Giving Health & Fitness Industry Lawyers a Real Workout

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By Michael Singer

Edited by Shaun Salmon

When former vice chairman of J.P. Morgan Chase & Co. James B. Lee, Jr. died recently after complaining of shortness of breath, it was revealed that he had been exercising at home at the time of his death. News reports speculated as to whether he suffered from a heart condition. Despite the accepted benefits of regular exercise (Lee was a regular exerciser), many gym goers are out of shape and carry with them health conditions they may or may not disclose (if they are even aware of them) when they walk in the door. For these people, strenuous exercise can increase three-fold the risk of a coronary event. Fortunately, for those stricken while at the gym, medical technology has advanced to such an extent that many gyms are prepared well in advance.

The advent of the Automatic External Defibrillator (AED) has begun to spell the difference between life and death for gym-goers who suffer sudden cardiac arrest (SCA). However, AED availability has also raised a number of legal issues, which were the subject of an eye-opening Lawline Industry presentation on the Medical Legal Issues in Health and Fitness Clubs, co-chaired by a pair of Kaufman, Borgeest & Ryan LLP partners: Jeffrey C. Gerson, who has lectured and written extensively on health and fitness issues, and Cristina LaMarca, who is also a registered nurse with prior experience in critical care and cardiothoracic surgery. In what is essentially a three-for-one session, LaMarca offers a concise medical and technology tutorial, while Gerson zeroes in on the big legal issue the AED has brought to the gym industry.

Defibrillator

The Medicine: SCA occurs when there is “an unexpected interruption of [the] electrical system causing the heart to stop pumping blood efficiently.” The causes range from disease to “severe physical stress.”

The Technology: Cardiac arrest kills 400,000 people annually in the U.S. alone: “Most … people who experience SCA have ventricular fibrillation (VF), [and] CPR cannot correct VF. An electrical shock, known as defibrillation, is what’s required to successfully restore a normal heartbeat in someone with the condition.” Enter the AED, the non-portable, doctor-operated version of which everyone is familiar with due to constant use in TV/film medical emergencies (“Paddles…Clear!”). The portable AED analyzes the cardiac rhythm and then advises whether the heart should be shocked to enable it to reestablish its electrical rhythm.

The Law: Many jurisdictions require that gyms have at least one AED on the premises and that an employee trained in using an AED be present at all times in the event a customer suffers SCA. These laws, in conjunction with state and federal good Samaritan laws, have raised legal issues surrounding AED training, use and maintenance, even in jurisdictions that don’t have the laws. To give an idea of what can be at stake, imagine the following situation, as laid out by  Gerson:

A gym has a functioning AED and a person on staff who is properly trained in its use and who is on staff when a gym client is stricken. At the time, there happens to be a doctor and medical student working out in the gym. The staff member defers to the expertise of these two, who determine that the stricken client has a pulse and is breathing and that the AED need not be used. 911 is called in a timely manner, but the patient dies en route to the hospital. The estate sues the gym, contending that using the AED was mandatory. But the controlling state statute requires only that an AED and someone trained to use it be on site, which leads to seemingly anachronous results.

What’s the point of requiring the equipment but not that it be used? What’s a court to do? Well, it can recognize a limited common-law duty to require use of the AED, carrying common law negligence standards with it. And this is precisely what occurred in the State of New York in Miglino v. Bally Total Fitness of Greater New York, Inc., 20 N.Y.3d 342, 985 N.E.2d 128 (2013).

Once one court has recognized the common law duty to use the AED, one can imagine state legislatures rushing to amend their laws, either to confirm or negate the duty. In addition, courts in states without AED laws would surely begin to recognize that presence of an AED and trained staff as the standard of care in negligence cases and adopt the common law duty even in the absence of a state statute. This is precisely the process playing out now.

image of treadmills in a fitness hall

Of course, the AED is relevant only to cardiac events. Gyms present all kinds of liability traps, and Gerson pays heed to the entire panoply of dangers (including the issue of trainers who are not employees, bacterial infections, overuse injuries, etc.), as well as to the impact of waivers of liability without going into great detail, leaving that for other Lawline Industry panels. See Enforcing Releases/Waivers of Liability for Health & Fitness Clubs: A State by State Compendium and Growing Tort Liability for Health Club Facilities. But he has a list of to-dos for every lawyer representing gyms or health club facilities:

The Action: What’s a gym to do to protect itself from liability, given the inevitability of injury or, as is the case with SCA, worse? Gerson offers what amounts to a 12-point action plan for total gym safety, the highlights of which include the following relating to SCA and the AED:

  • Maintain physician-reviewed, written emergency policies and procedures and practice them at least every three months;
  • Designate staff members trained in CPR to function as first responders in your fitness facility during all hours of operation;
  • Train staff to recognize signs and symptoms of SCA;
  • Do periodic training for staff in how to use an AED; and
  • Designate a staff member who is responsible for maintaining AED units (this can be a liaison with an outside maintenance company) and maintenance logs

And Gerson’s message for gyms located in states that don’t currently have AED laws? Now is a good time to buy an AED, anyway.

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Sigalle Barness

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October 13th, 2015

Sides A, B, C, as easy as 1, 2, 3: D&O Insurance Made Clear

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By: Michael Singer
Edited by: Sigalle Barness

D&O Insurance is one of those areas of law practice that stays off the radar until “the latest, greatest” corporate scandal rocks the globe. It’s arcane and murky, best left to learn when necessary. But…since the latest, greatest just occurred, with Volkswagen’s CEO resigning in late September in the wake of its emission-test rigging fiasco, the D&O game is again afoot. Although VW may have limited exposure stateside, it presents a good context for considering what D&O coverage is, how it works and some of its unique quirks. Always prescient, Lawline invited a couple D&O experts to do just that before the VW smog hit the fan. Joe Monteleone (Rivkin Radler LLP) did a stint in executive claims in the midst of his career, and Ty R. Sagalow (Innovation Insurance Group), almost literally wrote the book on D&O during 25 years at AIG. Their presentation, An Update to “What Makes D&O Liability Insurance Unique?” provides an indispensable who, what, when, why and “huh?” to these policies that are commonplace in the corporate world:

  • Who? Policies generally cover directors “duly elected” by the shareholders and officers “duly appointed” by the board of directors. Fancy titles don’t get you anywhere. Just because a person has the title of “director” or “vice president” does not bring that person under the ambit of a D&O policy. So the “Assistant Vice President of Making Sure the Coffee Room Contract is Renewed” is not covered under the D&O policy. Employees generally are not covered, though they may be included when they are co-defendants with a director or officer of the company.
  • What? D&O insurance typically consists of three, core, separate agreements, called Side A, Side B and Side C.
    • Side A covers claims against directors and officers not indemnified by the corporation. The liability of D&O are personal liabilities, “meaning if someone else won’t pay their legal bills,” they’re personally on the hook.
    • Side B is for the benefit of the corporation. When a corporation does indemnify directors and officers, Side B provides for reimbursement of the corporation.
    • Side C is entity coverage. For a publicly traded company, this is for securities claims only. Privately held and not-for-profit companies enjoy more entity coverage—all risk unless specifically excluded.

In addition to these three, core agreements, there are additional or supplemental agreements, such as shareholder derivative insurance, outside director insurance, environmental mismanagement, etc. These agreements will be denominated Side D, Side E, Side F and so on.

Volkswagen car maker logo on a building of czech dealership

  • What? Part 2: When a claim is made against an insured, whether it is covered under the D&O policy naturally depends on the provisions of the agreement. Usually, the policy will state that the claim must involve “a wrongful act.” A wrongful act is broadly defined (but check your client’s policy): “An actual or alleged act, error, omission, misstatement, misleading, neglect, or breach of duty by an Insured Person in her or his capacity as such.”Sagalow warns that there are variations on this definition that are often not in the favor of the insured, such as when the word “negligent” is inserted between the words “alleged” and act. This vitiates up to 70% of the coverage. The most interesting issues that come up have to do with whether the particular officer or director engaged in a “wrongful act” while acting in her capacity as director and officer. A director who is also a shareholder may commit an otherwise wrongful act, but if it is in her capacity as a shareholder and not as a director, it is not covered.
  • When? D&O policies are “claims-made” policies. Regardless of how long a course of conduct occurs, and how many interrelated acts underlie the conduct, a claim challenging that conduct relates back to the earliest act and is covered by the policy in effect at that time. This can create problems for companies because notifying the insurer of a possible claim “during the policy period” is also a requirement under D&O policies. Such notices must be specific as to the acts and actors involved, even if there is not a current claim against them.

Notepad On A Table

  • Why? Notice under D&O policies is tricky. Specificity of the notice of claim is critical because coverage can be lost due to inadequate notice. You have to give notice of circumstances that create a claim during the policy period when the claim arises, and the notification can often be of circumstances that lead the corporation to believe a claim may be made, if at all, well into the future, when the entity may have a different insurer and has certified to the new insurer that it has made a prior notice of the claim. So…if you gave notice to a prior carrier, then any claim arising out of those circumstances are excluded from current policies. If your prior notice wasn’t specific enough, the prior carrier might deny the claim for non-specificity and the current carrier will deny for notice under a prior policy.
  • “Huh? I thought we were covered for that.” The “notice exclusion” is only the tip of the iceberg when it comes to possible coverage exclusions in a D&O policy. The list of exclusions is long and growing, ranging from misrepresentation to “insured vs. insured” exclusions, which seek to avoid collusive lawsuits pitting a corporation against a director or officer that wronged the corporation. There are also exclusions required by law, such as when the company is forced to disgorge ill-gotten gains. You can’t recover a profit to which you weren’t entitled.

To find out more of the who, what, when, why and even a little more “huh?”—you’ll find Messrs. Monteleone and Sagalow holding court at Lawline Industry.

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Sigalle Barness

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September 24th, 2015

Big Data = Vulnerable Data: Your Clients Need a Comprehensive Privacy Program Now

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By: Michael Singer

Edited By: Sigalle Barness

First there was the dream of “big data” (look at all this data we can collect and store and play with!). Then there was the big data breach, with its attendant privacy and identity theft nightmares. When is big data too much data and how can an organization get a handle on it so it’s not a sitting duck for hackers? Jenner & Block’s Mary Ellen Callahan and Heidi L. Wachs shed some light on this and other issues in their recent Lawline program Developing Issues in Global Privacy and Risk Management. (more…)

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Sigalle Barness

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August 28th, 2015

The Only Thing Higher Than the Rents Are the Tenants’ Customers: Marijuana and Commercial Real Estate

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By: Michael Singer

Edited By: Sigalle Barness

Impact on real estate probably doesn’t spring to mind when you think about the trend toward decriminalization and legalization of marijuana. That would change if you gave Seena Samimi (Best Best & Krieger LLP) an hour of your time. You come away from Medical Marijuana and Commercial Real Estate in California and Beyond wondering how you had never considered all the implications of pot legalization on property owners. These can range from accounting for increased costs in leases and dealing with the conundrum posed by the fact that marijuana remains illegal under federal law. (more…)

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Sigalle Barness

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August 25th, 2015

No “GARA”ntee When It Comes to General Aviation Litigation

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By: Michael Singer

Edited by: Sigalle Barness

When you sit plaintiff and defense lawyers opposite each other at a table, you don’t often expect agreement, let alone camaraderie. Then again, not every legal roundtable is Lawline’s Industry presentation on Aviation. Specifically, Fredrick Alimonti (Alimonti Law Offices, P.C.) hosted aviation defense attorney Douglas H. Amster (LeClair Ryan), plaintiffs’ attorneys Brian J. Alexander (Kreindler & Kreindler LLP) and Douglas A. Latto (Speiser Krause), and forensic engineer Joseph R. Reynolds (RTI Group, LLC) to discuss Aviation Litigation: The View from 30,000 Feet. In  the presentation, Amster observed that in aviation law, plaintiffs and defendants “are … aligned toward [the same end]: better safety.” Alexander followed quickly, confirming that everything occurring after an aviation incident, from the actions of the National Transportation Safety Board (NTSB) all the way through subsequent litigation, is “moving towards making aviation safer…and is designed to make sure [a particular situation] doesn’t recur.” This fundamental agreement informs the unique roundtable that has something for everyone—from the experienced practitioner to someone looking to get started.

(more…)

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Sigalle Barness

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August 5th, 2015

U.S. Courts Start to Inject Some Legal DNA into GMO

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By: Michael Singer
Edited by: Sigalle Barness

Is genetically engineered (GE) food here to stay, or will state laws, court decisions and public pressure consign it to the recycling bin of history? (more…)

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