SAN DIEGO
Volume 210, 2021 $6.95
Easy, Proven Strategies for Reaching Your Full Potential on LinkedIn
Stefanie Marrone
4 Legal Process Automation Benefits You Need in 2021
Aneesa Needel
Considering a Law Firm Merger in 2021?
Roger Hayse
Law Firm Business Development: Building a Sales Team
Silvia Coulter Personal Branding Tips for Lawyers
Kimberly Lerman Riots and Pandemics: Can an Employer Discipline or Terminate Employees Who Participate?
Brooke Iley William J. Anthony
Law Firm of the Month
Tremblay Beck Law, APC, Serving Southern California A Focus on Resolution
SPECIALIZING IN COMPLEX BUSINESS LITIGATION
BET-THE-COMPANY CASES OVER 65 YEARS OF COMBINED EXPERIENCE REFERRALS/SUBSTITUTIONS ACCEPTED AT ALL STAGES OF LITIGATION, INCLUDING TRIAL • Complete defense jury verdict in real estate dispute and more than $400,000 collected for attorneys’ fees and costs in Batter v. McElhinney, et al. (2019)(Jason Kirby). • $2.1 million jury verdict for firm client in Doe v. San Diego Unified School District, et al. (2018)(Jason Kirby & Michael Kirby). • $1.1 million arbitration award for firm clients on cross-complaint after zeroing plaintiff on $6 million damage claim in Step Strategy Advisors v. Solid Gold Health Products for Pets, Inc., et al. (2018)(Jason Kirby lead counsel). • Michael Kirby received the 2021 Best Lawyers in America® distinction for (1) Bet-the-Company Litigation, (2) Commercial Litigation, (3) Litigation – Real Estate, and (4) Litigation – Securities.
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2021 EDITION—NO.210
TABLE OF CONTENTS 6 Personal Branding Tips for Lawyers by Kimberly Lerman
8 Four Legal Process Automation Benefits You Need in 2021
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by Aneesa Needel
12 Easy, Proven Strategies for Reaching Your Full Potential on LinkedIn
EXECUTIVE PUBLISHER Brian Topor EDITOR Wendy Price
by Stefanie Marrone
CREATIVE SERVICES Penn Creative
14 Considering a Law Firm Merger in 2021?
CIRCULATION Angela Watson
by Robert Hayes LAW FIRM OF THE MONTH
PHOTOGRAPHY Chris Griffiths STAFF WRITERS Dan Baldwin Jennifer Hadley CONTRIBUTING EDITORIALISTS William J. Anthony Silvia Coulter Robert Hayes Brooke Iley Kimberly Lerman Stefanie Marrone Aneesa Needel WEBMASTER Mariusz Opalka ADVERTISING INQUIRIES Info@AttorneyJournals.com SUBMIT AN ARTICLE Editorial@AttorneyJournals.com OFFICE 30211 Avenida De Las Banderas Suite 200 Rancho Santa Margarita, CA 92688 www.AttorneyJournals.com ADDRESS CHANGES Address corrections can be made via fax, email or postal mail.
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16 Tremblay Beck Law, APC, Serving Orange County A Focus on Resolution by Dan Baldwin
22 Law Firm Business Development: Building a Sales Team by Silvia Coulter
28 Riots and Pandemics: Can an Employer Discipline or Terminate Employees Who Participate? by Brooke Iley and William J. Anthony
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Editorial material appears in Attorney Journals as an informational service for readers. Article contents are the opinions of the authors and not necessarily those of Attorney Journals. Attorney Journals makes every effort to publish credible, responsible advertisements. Inclusion of product advertisements or announcements does not imply endorsement. Attorney Journals is a trademark of Sticky Media. Not affiliated with any other trade publication or association. Copyright 2021 by Sticky Media. All rights reserved. Contents may not be reproduced without written permission from Sticky Media. Printed in the USA
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Tips for Lawyers by Kimberly Lerman
P
ersonal branding is a topic gaining traction in the legal world. While many busy lawyers want to learn more about creating and maintaining their own brand, demanding careers and family obligations often prevent us from having time available to take on another seemingly extra project. But for those looking for a quick how-to, or perhaps a refresher, on personal branding, you’ve come to the right place. This article will give you a professional legal recruiter’s—and former practicing attorney’s—take on personal branding for lawyers.
• STEP ONE: Self-evaluate. Think about your strengths and areas for improvement. Figure out not only what you think you are good at, but also what you enjoy doing the most in your professional life.
What Is a Personal Brand for Lawyers?
• STEP THREE: Reflect on what you learned. Figure out what you’re good at doing to determine your personal reputation. Focus on the things you not only are good at but also that you enjoy, because those are the areas in which you’re most likely to shine.
First, it’s important to understand the meaning of the term personal brand. From there, you are in a better position to develop and promote your own. There are a number of different definitions of the term, but the concept can most concisely be summarized as a community’s image, perception or impression of an individual. As a lawyer, your personal brand is the way you are viewed by your legal community. In other words, your personal brand is your personal reputation.
Why Is a Personal Brand Important for Lawyers? Branding is important for individuals for the same reason it’s important for companies. Corporations know that individuals rely on brand reputation when making purchasing decisions. Similarly, companies rely on the reputation of individuals when making decisions on hiring, promotions, raises, and layoffs.
How Do You Create a Personal Legal Brand? Before you can begin to build and express your brand, you first need to create it. To begin, it’s best to focus on figuring out what you’re good at and what you’re known for within your community. I recommend the following steps:
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• STEP TWO: Reach out to others in your professional network, including current or former supervisors, colleagues, peers and direct reports. Encourage them to provide honest feedback regarding your strengths and weaknesses. This can be done in an informal setting as a means to catch up with your colleagues and get direct input.
• STEP FOUR: Put together your personal “elevator pitch,” which essentially is the pitch you would give to sell yourself in 30 seconds or less if someone asked you, “Tell me about yourself.” You might take some time to write down your pitch, rehearse it, edit, and polish until you feel comfortable. Depending upon your audience, that pitch might change to suit the message you are looking to convey. • STEP FIVE: Get the word out! Let people know who you are and what makes you an asset to your community.
How to Build Your Personal Legal Brand Once you have created your personal brand, it’s time to make people aware of it. Start small. Share your elevator pitch with your online network and your closest connections. Then start to build a bigger online presence by commenting on LinkedIn posts made by your connections, sharing articles on LinkedIn, and of course continuing to build your online network. As you continue building your brand, start writing articles and giving speeches and presentations to continue to advance your presence in your community.
Using Your Brand to Advance Your Legal Career
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Building your brand is like putting money away into a savings account for a rainy day. Eventually you will be able to cash out, whether it’s when asking for a raise or promotion, or looking for a new job. Having your elevator pitch prepared and rehearsed prior to your annual review or next job interview likely will make the process a lot less stressful. And remember, don’t be shy about promoting yourself when the situation warrants. Remember that a lawyer is an advocate. When you’re asking for a raise/ promotion or interviewing for a new job, it’s definitely appropriate to talk about how great you are.
Build Upon Your Personal Brand Even While Steadily Employed You never know when you might have an opportunity for an internal promotion and to advance at your firm or company. Also, many employers have a limited amount of money to utilize for raises and promotions each year. If your colleague down the hall is promoting their brand and you are not, that could be a factor when it comes time for raises and bonuses to be determined for members of your department. Also, you never know when your secure job might suddenly become not-so-secure. Within the in-house legal environment, company sales and reorganizations can come with little warning and result in layoffs; and in the law firm environment, mergers can result in conflicts and increased pressure to raise billing rates—all of which could suddenly leave you looking for a new job without much notice. The single most important piece of advice I can offer on this topic is to begin building your personal brand before you think you’ll need to rely on it. For most of us, it’s hard to make the time to squeeze anything else into our already busy lives, but if you ever find yourself in the unfortunate position of being underpaid, underutilized, or unemployed, you’ll be much better off if you already have a personal brand and an elevator pitch in place. n Kimberly Lerman is a Talent Manager in the Atlanta office of Legility. She works primarily with attorneys, placing them in a variety of positions in corporate legal departments across numerous industries as well as at law firms. Learn more at: https://www.legility.com.
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4 Legal Process Automation Benefits You Need in 2021 by Aneesa Needel
M
cKinsey estimates that a whopping 23% of work done by lawyers today can be automated by existing technology. Just think of the efficiency this could provide to your organization. But does it mean you need 23% fewer lawyers? Not to worry though—as outlined by the UCLA Law Review, leading experts on automation believe that technology complements the work done by lawyers, rather than replaces them. In 2018, the total legal technology spend in the U.S. exceeded $3 billion—and this number has increased steadily since. Corporate legal departments are, of course, under unrelenting pressure to reduce costs while increasing efficiency. This is where legal process automation comes in—it allows companies to streamline, automate, manage, and measure all manner of legal tasks. Chances are, you may have a legal process automation solution in place already—but is it doing the most it can? Sliding into 2021, this is the perfect time to evaluate (or re-evaluate) whether or not you’re benefiting from your chosen solution. Here are three major potential benefit areas to take into consideration when looking for the best automation solution.
1. ROI and Cost of Ownership Let’s face it—no matter what legal process automation solution you look at, it all boils down to ROI and the cost to your organization. With the new pressures brought on by 2020, this is as important as ever. An effective legal automation solution provides immediate access to the entire set of tools needed for intuitive, drag-and-drop workflow automation and process transformation. Why wait to see what kind of return on investment you’re getting? A good solution demonstrates immediate ROI and scales easily with greater deployment across more processes, while giving you valuable insights into how your business processes are functioning so you can continually optimize them. On the same note, the best automation technology will lower your total cost of ownership. You can reduce total costs because you’ll eliminate infrastructure requirements, have predictable pricing, reduce training and support costs, and be equipped with the ability to embed risk and compliance best practices within processes, which also ultimately saves money.
2. Ease of Adoption and Use Any effective legal process automation solution should be built for ease of use and deployment, providing a level of self-service allowing you to design and publish workflows for any process with no coding, IT, or developer involvement necessary. Not only does it simplify your life, but this flows into your reduced cost while lowering the margin of human error. It’s a win-win! You should have the ability to configure custom integrations, and/ or integrate your solution smoothly and easily with major software applications, such as eSign integrations. One SaaS solution should be sufficient to use for your processes across multiple functions and departments. It should be flexible and scalable, with the ability 8
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to respond quickly to changing needs with an agile methodology enabling implementation.
3. Better Compliance In terms of reporting and analytics, it’s important to have the ability to access reports in a variety of formats, as this provides visibility and transparency across your whole organization. This leads to increased accountability and better compliance. You should be able to track and monitor every transaction across all workflows, with a single-source of truth and audit trails. This is more vital than ever now that we’re dealing with remote workforces. Ideally, your solution should provide managed access to centralized documents, workflow statuses, and analytics with real-time collaboration. An effective solution would have been developed with top security experts and compliance managers to meet the toughest security standards, protecting your organization from changing rules and regulations and the dangers inherent in having a widely disseminated staff.
4. Added Agility What did 2020 impress upon nearly every department in nearly every company globally? That the ability to quickly pivot to address new circumstances, like remote workforces or the legal implications of a massive pandemic, is paramount. Legal process automation can deliver that agility like practically no other technological enhancement available to enterprise legal teams and other departments that work with them. The right solution can cross departmental boundaries and embed legal best practices in the workflows used by other corporate units, while also imparting the same efficiencies it does to the legal department. If that doesn’t make Legal a hero in the boardroom, we’re not sure what else would.
You Should Expect a Lot From Legal Process Automation It may sound like you’re asking too much of a single solution—but your organization deserves the best. Especially as organizations rebound from a difficult 2020, and stress agility, productivity, and efficiency more than ever before. Legal process automation can provide all of the above while saving your Legal Operations team and staff counsel from mundane, routine tasks and soul-killing paperwork, while liberating them to focus on more important tasks. Legal process automation can transform your company—your bottom line, employees, and clients alike will thank you for it. n Aneesa Needel is a Product Marketing Manager for Legal Operations and is dedicated to ensuring Mitratech’s platform and tools are understood and provide continuous value in the market.
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Easy, Proven Strategies for Reaching Your Full Potential on LinkedIn by Stefanie Marrone
It’s never too late or early to start using LinkedIn. You have to start somewhere. I didn’t always have a strong LinkedIn network or presence. Just like everyone else, I had to start from scratch. And there was a long time where I didn’t do much on LinkedIn except for accepting connections. I dipped my toes into using LinkedIn by first building a strong profile and a wide network of connections. I made a connections plan and thought about who I could connect with from college and graduate school as well as all of my past jobs and volunteer positions. (When it comes to LinkedIn, having more connections is better to raise the likelihood that your posts will be seen.) Then I focused on my interaction on the platform, first liking, sharing, and commenting on my network’s posts. When I became more comfortable and confident, I started creating posts myself. Those included sharing articles I found that were relevant and useful to my network. I used Twitter to help me source articles by following various publications of interest to me and my connections. I thought of myself as a news aggregator, bringing important information to my network. I was able to differentiate myself by adding a few lines of text with each article explaining why it was important or insightful for someone to read. And that is such a key step to build in as part of your social strategy. You can’t just share an article without any introductory text. You get extra points if you tag an entity or a person in the post as well. And a gold star if you start to use a hashtag strategy (hashtags help your posts become more discoverable on any social platform). I reached my full LinkedIn potential when I began to create my own content, providing my network with helpful tips and insights. I paid attention to when my connections were on the platform so that they would be most likely to see my posts. I refined my content based on how well each post did. I started to use images and hashtags for each post.
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And most importantly, I had confidence in what I was posting. I didn’t become discouraged if a post had a low number of likes, instead I tried to learn from it and refined my content strategy based upon the performance of each post.
Here’s what I did to grow my LinkedIn network and turn it into a business. If I can do it, so can you! • I focused only on the social channels where my target audience was (this meant LinkedIn) • I liked, commented, and shared others’ posts • I started writing about my speaking engagements and created takeaway posts • I turned my PowerPoint slides into social posts recapping the webinar or event • I built an editorial calendar to plan future posts • I shared only value-added content • I created visuals for each post • I made my content interactive and used video • I gave away free content, tools and helpful info • I looked at others for inspiration/ideas • I told personal stories and injected my personality into posts • I developed a hashtag strategy to enhance visibility of posts
• I regularly engaged with my followers—respond to each comment on your posts. It’s very helpful in terms of LinkedIn’s algorithm as well as just being a great way to interact with those who like your content. • I built a strong profile and regularly updated it, using new features released by LinkedIn (such as the amazing Featured section which enables you to pin certain posts to the top of your profile • I cultivated my network—adding new connections every week • I checked my LinkedIn messages, and actively sent messages to connections with whom I had lost touch or who were important to me so that I was top of mind with them • I recycled my greatest hits—reposting past content that did well using my editorial calendar to help me plan out content • I set up a sharing “pod” with 4 LinkedIn connections • I used analytics to refine my efforts • I posted at least 3X a week (then increased that to 5X), and I didn’t get discouraged if no one liked my posts. I knew that the audience would come if I posted good content.
The greatest thing about LinkedIn is that it’s never too late or early to start using it. You have to start somewhere. We all did. I have a lawyer client who’s in his early 60s who never used LinkedIn other than to create a profile and accept connections. He successfully started using it to bring in leads and build his brand within just 18 months of making LinkedIn part of his business development strategy. I hope this shows you that anyone can achieve success on LinkedIn and why it’s worth making LinkedIn part of your marketing strategy. Stay the course. Social media success is a long-term investment in you! n Stefanie Marrone advises law firms of all sizes, professional service firms, B2B companies, professional associations, and individuals on the full range of marketing and business development consulting services designed to enhance revenue, retain current clients, and achieve greater brand recognition. She also serves as outsourced chief marketing officer/marketing department for smaller firms. Over her nearly 20-year legal marketing career, she has worked at and with a broad range of big law, mid-size, and small firms, which has given her a valuable perspective of the legal industry. Connect with her at https://www.linkedin.com/in/stefaniemarrone.
Monty A. McIntyre, Esq. Mediator, Arbitrator & Referee ADR Services, Inc.
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Attorney Journals San Diego | Volume 210, 2021
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Considering a Law Firm Merger in 2021? by Roger Hayes
F
or the last decade plus, merger has been a strategic choice for many law firms. The 2020 pandemic had a negative impact on the quantity of mergers but many including our firm expect there to be a major uptick in 2021. Given the probability that firms will at least be considering merger as part of their go forward plan, it seems prudent to think about what a good merger partner should look like. To that end, here are 10 questions you should answer before having a conversation with another firm:
1. What principal characteristics of your existing culture are most important to you. A lack of cultural compatibility is difficult, if not impossible to overcome, and one of the reasons so many combinations fail.
2. In what rate tier do your clients exist? A lack of similarity in realized rates drives conflicts in staffing client files, compensation, and a host of other critical law firm areas.
3. What additional expertise (whether new to your firm or additional depth in existing areas) will allow your firm to make desired progress in targeted areas of growth? 4. What are your key financial metrics? A good merger partner will have economic metrics that are similar to yours (of course unless your firm is failing). Metrics significantly different from yours—whether better or worse— will lead to painful pressure for one party or the other on rates, hours, and retention.
5. What aspects of your current compensation system do you most value? Merging with a firm with a significantly different approach to compensation will almost certainly result in a different relative treatment among your existing partners, possibly with unexpected negative consequences.
6. What size of merger target best serves your firm’s goals? Questions like are you comfortable being a small outpost of a mega firm, or even small relative to your merger partner, are 14
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good questions to think about. The greater the size disparity in a combination the less “say” the smaller firm will have in future decisions.
7. Is your firm facing succession issues? If so, in what specific way would you like to see a merger partner solve those issues?
8. In addition to your existing footprint, what additional geographic presence would bring value to your firm, and why? 9. What type of governance are you and your partners most comfortable with? Firms are governed in a range of ways, from very democratic to tremendous authority being vested in a few. It is important to know in advance what you are comfortable with and what is off-the-table in terms of governing options.
10. What level risk do you think is reasonable? Risk in a law firm includes bank debt, partner turnover, unfunded pension plans, pending or threatened litigation and loss of key clients. Understanding your risk-tolerance is key to a successful merger. The answers to these questions, and the impact the answers will have on your approach to a merger possibility will vary depending on whether you are acquiring or being acquired; but the greater the variance between how you feel with respect to these 10 issues, and the reality of the world you’re considering will be a predictor of the success of the combination. If a strategic merger is in your future, smart leaders will engage in identifying the things that are most important to their partners; far too many mergers occur without defining in advance what a firm is seeking, and why. n Roger Hayse has spent more than 30 years closely advising law firm management and legal industry service providers. His career is highlighted by consistently providing the counsel and leadership critical to successful law firm transitions. Roger is a frequent writer and speaker, author of the 2002 book “Law Firm Strategy”, and co-author of the Hayse LLC Blog. Learn more at: www.haysellc.com.
RESOLUTION Is the Best Solution To Solving Legal Puzzles in Business Law by Dan Baldwin
Tremblay Beck Law, APC is a boutique law firm representing clients in a wide variety of personal, business, and employment-related legal matters. One of the things I’ve always loved is figuring out puzzles, and litigation is a big puzzle. It’s making all the pieces fit to come to a resolution. We’re certainly always fully prepared to go to trial, but in the long run our focus on resolution is in most cases the best for all parties concerned,” Says Katharine Tremblay Beck, Esq., at Tremblay Beck Law, APC. Tremblay Beck Law has found, and have shown in their successful track record, that 98 percent of the time negotiation rather than trial is in the client’s best interest both financially and in terms of successful outcomes. As an example of the firm’s focus, she cites their work in Gwynn v. US Smokeless Tobacco. The firm brought in Dave Casey, Jr., and the Casey Gerry law firm to assist in the representation of Tony Gwynn’s heirs—Alicia Gwynn and her children. Beck says, “This is the only case US Smokeless Tobacco has settled.” “Since 1998, my Late husband Tony Gwynn and I have had the privilege and honor to obtain Don Tremblay as our family attorney. No matter how complex the matter is he has always laid it out for our family to give the choice rather to pursue the case or not. He has represented us always in a professional way. Don’s intentions are driven to win every case. I must say he has represented our family on a lot of matters and has prevailed in all of them. Then comes his daughter Katharine who joined the firm after taking the bar. Like father, like daughter, of course with a softer edge. Donald Tremblay can be the bulldog representing you when he needs to, and he really cares about his clients. We have watched our children grow up.
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Having Katharine represent me on many matters; she has been very savvy in knowing the laws as well as very professional. Knowing that my children can call him up on different matters lets me know that is all for the Gwynn family and I wouldn’t want it any other way,” says Alicia Gwynn. Dave Casey adds, “It was an honor to work with Don on the Tony Gwynn case against the tobacco industry. It was the only case ever brought in California against the tobacco dip industry. Don had the vision, creativity, and crisp legal skills to discern an effective and unique legal strategy in a one-ofa-kind case. He is wonderful to work with and has terrific analytical skills. He is a lawyer I would be thrilled to work with on any complicated and challenging case. He is very ethical and always puts his client’s interest first. Lawyers who face him know they are in for a fight but recognize that Don, while fully prepared to engage in trial, will work hard to resolve cases for the benefit of his clients.”
THE TORCH IS PASSED The firm was founded by Beck’s father, Don Tremblay, who has practiced law for more than 40 years, approximately 39 of those years on his own. He has more than 50 jury trials and ten appeals as lead counsel. Tremblay Beck Law was started three years ago. Tremblay no longer practices trial work and focuses his energies on the firm’s life sciences, licensing, intellectual property, and appellate practice areas. He is still involved with the firm as the owner—a strategist, experienced negotiator, and appellate attorney. For example, in recent years
© Bauman Photographers JOURNALS
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OF THE MONTH
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Left to Right, Top to Bottom: Maurile J. Tremblay, Katharine Tremblay Beck, Eric Beck and Donald Tremblay.
he has argued before the Ninth Circuit and the California Supreme Court as well as led a team that negotiated two major licenses with a publicly held company, Glaukos, on behalf of Intratus, a biotech company of which he is part of the Executive Management Team and an owner. That team included Tremblay Beck Law attorneys John Dunn and Maurile J. Tremblay. Don Tremblay began his career as a DA in Los Angeles and moved to San Diego when he started a family. He founded his own firm in the early 80s as the Law Offices of Donald P. Tremblay. He has worked on cases and as co-counsel in Germany, London, Canada and across the US. He and his daughter have worked with co-counsel in Mississippi, Cayman Islands, and currently in New York. While many people may say that their parents were a large influence on their life, not many get to have a parent as a professional mentor. Beck has the unique opportunity of seeing her father in a professional setting. “He knows how to motivate each of us in the way that we need to be motivated. In that sense he has allowed me the room to grow and learn while providing guidance when necessary. As a young attorney I was able to appear in Court to argue motions before many of my colleagues/classmates were able to do the same,” Beck says. Beck has considerable experience in federal and state courts dealing with matters involving mediation, law and motion, contract claims, complex bankruptcy law, and probate proceedings. She served as lead intern at the Los Angeles District Attorney’s Office during the Anna Nicole Smith preliminary hearing and in the investigation of the death of Michael Jackson, where she assisted in preparing evidence for the Special Trials Unit. When she graduated, the DA’s office was on a hiring freeze, so she joined her father’s firm, first as a Law Clerk and then as a lawyer after earning her J.D. at University of San Diego School of Law. Beck has a definite legal legacy: her father, her cousin, Maurile J., and her uncle, Maurile C. Tremblay, a successful retired lawyer in San Diego. Her record shows that she is living up to that legacy. In 2018, she led the trial team in a 17-day Jury Trial that resulted in a stalemate—while the complaint did not result in a monetary win, she successfully defended against the defendants’ cross-complaint. The case settled while on appeal to the satisfaction of all the parties. In 2019, she assisted the Texas law firm of Janik Vinnakota, LLP with a local arbitration, taking the lead on the crossexamination of the opposing party’s CEO during the arbitration as well as the closing argument. The client, who had been sued for more than $212,000, was awarded more than $275,000.00 by the arbiter. Beck successfully argued that the claimants consistently breached the Covenant of Good Faith and Fair Dealing throughout the business relationship with her client resulting in a favorable result for a respondent-client. 18
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She has successfully negotiated several competitive severance agreements with C level employees. Beck assists employers with navigating “sticky” employment situations: hiring, termination, wage and hour claims, updating Employment Handbooks, and successfully settling claims of wrongful termination at typically a tenth or less than the initial demand.
ASSEMBLING A POWERHOUSE TEAM Beck is first to state that she doesn’t do it alone. She has assembled a remarkable team of experienced and talented attorneys: Donald P. Tremblay, Principal Managing Attorney; Katharine Tremblay Beck, Principal; Dave Carothers, Of Counsel; Peter Schluederberg, Of Counsel; Robert Robinson, Of Counsel; Maurile Tremblay, Of Counsel; John Dunn, Of Counsel; Eric Beck, Paralegal. The attorneys have more than 100 years of experience and each member of the trial team has jury trial experience. Robert “Bob” Robinson, Of Counsel to Tremblay Beck Law, also has a prosecutorial background. Carothers, in addition to his nearly 100 jury trials, is a former Commissioner to the Fair Employment and Housing Commission where he mediated a variety of employment cases and is also an experienced arbitrator. He will support the firm in the establishment of its Alternative Dispute Resolution practice. He was recently placed on the executive committee of San Diego’s American Board of Trial Advocates (ABOTA) and has been listed in Best Lawyers in America for several years. Donald P. Tremblay heads the biotech, licensing, and intellectual property divisions. Assisting him on this team are John Dunn and Maurile Tremblay. Katharine Tremblay Beck, Carothers, and Schluederberg make up the court room trial team with assistance from Bob Robinson and Maurile Tremblay (discovery and motions). The team has experience in Business Law (Breach of Contract, Fraud, Civil Conspiracy, Derivative Suits, and Breach of Fiduciary Duty), Legal Malpractice (both prosecuting and defending), Employment Law (Dave Carothers is an experienced attorney in this area), Insurance coverage and bad faith, as well as Contract Law. The firm has some unique areas of talent amongst the attorneys that allows them to serve clients in a variety of challenges: Peter Schluederberg and Donald Tremblay have extensive knowledge in Insurance Coverage and the firm consistently looks for insurance coverage for their clients. For example, they help clients determine if there is a policy they have that may provide them help in defending the claims against them. The firm is not an insurance appointed defense counsel and thus, they truly have their clients’ best interests at the core of their work.
each of us in the way that we need to be motivated. In that sense he has allowed me the room to grow and learn while providing guidance when necessary.” —Tremblay Beck
© Bauman Photographers
“Don knows how to motivate
Tremblay Beck Law draws on its internal expertise and external relationships in whatever combination is best suited to handle a given matter, even if it doesn’t fit neatly into a single box. The firm is experienced not only in business, insurance and employment matters including litigation in all forms of all types (mediation, arbitration, state and federal trial courts, and the appellate courts) but also the biotech/life sciences area (licensing and intellectual property). Beck says, “We’d like to send a message to the legal community and potential clients that we are tough negotiators and tough trial and appellate attorney for our clients. We will strike strong but fair blows against our client’s adversaries in furtherance of their best interests.” Tremblay Beck does not provide referral fees, but they welcome the opportunity to work with co-counsel. Beck is currently working with Elliott Jung of Hepburn, Hernandez and Jung on a case involving employment law and whistleblower claims. They have worked with Casey Gerry (David Casey, Jr., Robert Francavilla, and Adam Levine, among others at that firm). They are currently working with Dennis Vacco, former New York State Attorney General with his firm Lippes Mathias Wexler Friedman on several cases in New York. For a case in Mississippi the Tremblay Beck Law attorneys worked with Attorney Michael Held at Phelps Dunbar, LLP. Held says, “I had the pleasure of working as co-counsel along with the Tremblay Beck Law Firm for over three years to
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Attorney Journals San Diego | Volume 210, 2021
obtain a successful resolution of a matter for our mutual client. People sometimes describe successful attorneys as zealous advocates for their clients. Using this descriptor to explain the work of the Tremblay Beck Law Firm would be an injustice as it does not even begin to explain how fiercely the Tremblay Beck Law Firm litigates cases. These attributes coupled with integrity, honesty and cordiality make the Tremblay Beck Law Firm one of the best if not the best firms I have ever had the opportunity to work with during my career. Finally, not only are they great litigators, they truly are great individuals with the highest ethical and moral standards displayed in their work and in their interactions with all.” Approximately 30-40 percent of the firm’s cases involve other attorneys or legal firms. Beck says, “Our corporate motto is Ex Umbris in Veritatum—Out of Darkness into Truth. We take that motto and that approach to every case we take on. And that’s how you find your way to the best resolution.” n Contact Katharine Tremblay Beck Tremblay Beck Law, APC 5330 Carroll Canyon Road, Suite 230 San Diego, CA 92121 (858) 792-7492 tremblaybecklaw.com
© Bauman Photographers
Left to Right, Top to Bottom: Robert Robinson, Maurile J. Tremblay, John Dunn, Donald Tremblay, Peter Schluederberg, Eric Beck, Katharine Tremblay Beck and Dave Carothers.
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Law Firm Business Development: Building a Sales Team by Silvia Coulter
A
question for firm leaders: If there were a way to quickly establish relationships with buyers at companies desired as clients, expand work at existing clients, collapse the sales cycle, increase top-line revenue, take some of the pressure off talented rainmaking lawyers, and add business professionalism at the firm, would you consider making an investment? Over the last 20 years, several firms have answered this question, “Of course!” as they initiated professional sales functions led and expanded by experienced sales professionals. Curiously, though, despite the measurable benefits and the precedent that already exists, many firms have not. They remain woefully behind professional services firms such as public accounting, consulting, and even architecture. Because law firms are using the current pandemic-induced business disruption to evaluate all their businesses’ components, perhaps it is time to also revisit the concept of professional sales as a part of today’s law firm. With some exceptions, lawyers dislike and deprioritize selling. Most did not anticipate it as part of their careers and have received no training, so they are generally not as good at it as a trained sales professional who has experience selling intangible offerings. To address these realities, some firms realize the enormous benefits of hiring sales managers and building teams of sales professionals. Naturally, there may be some initial backlash against management for heading in this direction, but the right sales professionals can quickly change partner perceptions. Yes, we’re talking about hiring externally focused, client-facing sales professionals. The benefits are significant, and partners who work with seasoned sales pros realize quickly that these business professionals bring to the pursuit team the enhanced ability to open doors, advance relationships, identify opportunities, prepare for sales meetings, participate materially (if not outright lead) sales conversations, identify and address sales obstacles, and advance discussions to the point where clients and potential clients can make a yes or no decision to the offering—in other words, to close. Recently the head of litigation of a global giant said, “Why would we hire someone like that who could turn around and walk out the door with our firm’s client contacts and go
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across the street and do the same thing?” We ask, how is this different from the hiring of lateral lawyers and other business professionals who serve the client? It is an acceptable risk. And, in any event, when it comes to sales professionals, it is important to realize that though they may be an essential part of the firm’s relationship with a client, the client is served by a lawyer or team of lawyers whose role is to provide outstanding service and value while addressing legal issues. A sales professional’s relationship skills are important, no doubt, but it is the service team and its professionalism that cements a client to the firm. A department chair of a different 700-lawyer firm stated, “When we first hired Tricia, most of our partners were aghast that we had hired a sales professional. Then, suddenly, everyone wanted her time and help, and one person was not enough. It is amazing how such a professional works with our partners and how we have increased our odds of winning business by combining her business skills with our lawyers’ legal ones. Now, we cannot imagine not having salespeople at the firm.” And what about the all-important client perceptions of a firm adding sales professionals? “When we first launched sales at our firm,” says Press Millen, who was instrumental in engineering the profession’s first sales function at Womble Bond Dickinson, “our partners envisioned that when a salesperson showed up at a client, a trap door would open, sending the entire team to a fiery hell. Needless to say, that did not happen.” In fact, most general counsel deal with the sales professionals within their businesses, and they understand the role and importance of sales. To them, although it is a bit novel, having a sales professional on the law firm’s team seems natural and helpful in moving forward with business opportunities. Beyond doing traditional sales tasks such as targeting, opening doors, advancing relationships, and identifying new opportunities, professional salespeople enhance existing firm business development. For instance, want to transform key client teams to true strategic account teams? Get the help of a salesperson who is responsible for client growth. Want to win more opportunities when competing against other firms?
Hire a sales professional. Want to up your odds of winning proposals? Hire a sales professional who can identify and address the make-or-break sales issues resident in RFPs. Excellent sales pros, like great litigators, are trained to win. For each opportunity, they create a sales strategy and pursue it with a singular focus. Where does a firm start? Who does the salesperson report to? Start by looking at the firm’s most important clients—the ones that represent 80% of the firm’s revenue. Most firms find that these clients comprise one or two or at most a handful of industries. Identify and hire a professional from that industry who has strong and proven sales experience and extensive contacts with decision-makers in that sector. This could be someone from an accounting or consulting firm or directly from the industry itself. The reporting structure can be tricky. Many good and strong salespeople would never dream of reporting to a marketing person; however, that does not have to be the case. Sales and marketing are both symbiotic components of the business development continuum, and a strong marketing leader who has excellent management/leadership skills and an appreciation of the unique skills that salespeople bring, and excellent management/leadership skills can be an effective
administrator of the sales function. If not to a marketing leader, sales professionals should report directly to department chairs or managing partners. The reporting relationship is just one aspect of launching a sales function at a law firm. Other considerations include revenue expectations, compensation, sales “territories,” ethics considerations, and many others. We are more than 20 years into the advent of professional sales at law firms, and each of these issues has been considered and dealt with successfully. None are showstoppers. Yes, professional sales are something new for law firms. But those who have done it well agree that hiring an experienced salesperson may be the best thing the firm ever did. n Silvia Coulter is a Co-founding Principal of LawVision. Silvia is widely regarded as one of the legal industry’s most experienced sales, key client planning, and leadership experts. Her experience includes working as a former strategic account executive and sales leader at a Fortune 50 company, a chief marketing and business development officer at two global law firms, and consultant and facilitator to firms across the globe. This article was originally published on PinHawk’s Law Firm Marketing Brief, October 6, 2020. Republished with permission.
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Jan M. Eckermann MD, FAANS Diplomate, American Board of Neurological Surgery Brain and Spine Surgeon
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Riots and Pandemics: Can an Employer Discipline or Terminate Employees Who Participate? by Brooke Iley and William J. Anthony
T
he change in administrations has released a flood of protestors, some of whom have engaged in violent acts, while at the same time creating potential COVID-19 “super-spreader” events in the workplace. How should—and could—you, as an employer, handle employees who have participated in these rallies? What limits—and rights—do you have to discipline, terminate, or keep employees away from the workplace related to concerns about their off-duty conduct and the pandemic? Some top-level issues you should evaluate related to employees’ attendance at rallies, which intersect with a host of legal and company considerations, include constitutional law; state and local civil law; state and local COVID-19 regulations; and last, but certainly not least, your company’s own employment policies. Consider this scenario: It is Monday morning and, as you sip your first cup of coffee, your CEO calls and wants to immediately fire three employees who were seen on the weekend news at a political rally that turned violent. Not only did the CEO see them on the news, but she received texts and calls from customers demanding action and questions from company executives who want to know what the CEO plans to do. One of the employees on the news was wearing a company logo jacket while carrying a baseball bat as he forced his way into a government building. Another employee was seen carrying a racially insensitive flag and not wearing a mask while surrounded by hundreds of mask-less protesters but showed up for work today. The third employee was seen engaging in property damage. In addition to wanting to finish your coffee, you already have a hundred other things to do today. Such is the life of in-house lawyers, executives, and human resources professionals in a pandemic. Your mind is racing with how to think through all the ramifications and issues if you fire all of them, none of them, or some of them. Is it lawful? Is it advisable? Is it going to lead to negative publicity for your company if you fire them? Are there options to take other than terminating them? What are the ramifications of doing nothing? What message does that send to customers and other employees? Does being an “at will” employee mean anything these days? Let’s start by putting some structure around your thinking.
Gather the Facts and Review Your Company Policy As with all good employment decisions, we first need to know the facts. What videos are available to view and download? Are there pictures posted of the demonstration that implicate your company or the employees? Were the employees quoted by the media? Do you need to speak with the employees at issue as you generally do before making any final employment decisions? 26
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While you gather the facts, you will need to determine whether each employee is at-will or subject to a “just cause” standard or process prior to termination. For example, does the employee have a contract, is the employee subject to a collective bargaining agreement, or is the employee covered by a tenure policy that affords them certain procedural rights prior to termination? Next, you need to review the employee handbook and other company policies to see if any are implicated. Is there a policy regarding off-duty conduct? If not, are there broad policies that apply to this scenario, such as a code of conduct or policy that discourages any conduct that harms the good name or reputation of the company? Moreover, do the company’s current COVID-19 policies speak to attendance at mass gatherings, or require more generally that employees abide by state and local restrictions, many of which have strict limits on the number of people who can gather together? Did the employee sign a COVID-19 form or self-certification after attending the protest(s) at issue that may contain false information related to these local laws and mask-wearing requirements? Finally, does the company have core values that it abides by, and do they support a decision to terminate a violator’s employment? You will also need to consider if the company has faced similar situations before to determine how it responded in the past. Between the pandemic and the scope of protests, many, if not most, companies are now facing employment scenarios never seen before.
Statutes, Regulations, Ordinances, and Public Policy Local and state laws can largely govern how you treat any of the three employees in the scenario laid out above, and this requires a careful reading of all the laws at issue as well as a close examination of everyone’s conduct. Specifically, assuming you are a private employer not directly subject to federal or state constitutional requirements, what laws are implicated by the CEO’s instruction to fire the employees? Some states and localities prohibit private employers from taking employment actions for “lawful” off-duty conduct or political activities. In the scenario above, some of the conduct at issue here may have been unlawful, but was it “political” as defined in the statute? Is attending a political rally where violent acts were perpetrated enough to negate it as protected activity? Probably not, but it will depend on the state or local law. Even if constitutional protections do not directly apply, do they form the basis of a claim for wrongful termination based on a “public policy” and, if so, were the employees’ actions protected by those constitutional provisions? Again, some of this activity may be protected, but criminal activity is not.
Next, the laws against discrimination require that the actions cannot be based on the employee’s characteristics protected by federal, state, or local law. This is where company policy and past practice come into play. Is there a policy that speaks to such activity? Is the company aware of situations where employees engaged in similar conduct that resulted in termination? For example, is the company aware of employees coming to work wearing clothes or otherwise displaying the same flag or similarly insensitive symbols? Have others attended demonstrations or mass gatherings that are not political without wearing a mask? Is the company aware of situations where applicants or employees had been accused of off-duty violence or property crimes but were hired or remained employed anyway? The next question is whether these employees are being treated differently than others based upon a protected characteristic and, if so, is there a legitimate business reason for doing so? Are all three employees “similar” just because they attended the same rally? Finally, are the employees subject to a collective bargaining agreement, employment contract, or policy that alters the at-will nature of the employment relationship or affords them certain procedural rights prior to discipline or termination? What workplace regulations and ordinances are implicated when employees were potentially exposed to others who may be positive for COVID-19, yet reported to work without disclosing it? If your investigation determined the political rally was a “superspreader” event, what steps do you have to take to ensure the safety and health of other employees and customers that these three individuals came into contact with? Must you report the situation to a government agency? Should you shut down the workplace for several days? Between state and local laws, the Constitution, and COVID-19, there are a myriad of issues that you must carefully consider and navigate.
Business Considerations You also need to think through the business ramifications of the employment decisions you will be making. What precedent are you setting? How will customers react? How will other employees perceive the company’s handling of the situation? It is usually best if you can tie these decisions to business-related considerations. Violence, theft, and unsafe practices all potentially impact the workplace even when the activity takes place outside of work. The activity described above is likely not protected by off-duty conduct or political activity statutes, but each law is written a bit differently. Customers and coworkers have the right to want to avoid working with people who commit crimes openly, display racially insensitive flags, or engage in activities that present a risk to their safety, such as attending mask-less rallies. As with all employment decisions, in determining the appropriate course of action, you should make sure that the issue is thoroughly investigated, consistent with company policy and past practice, and is fair. You need to evaluate the impact of the employment decisions on employee morale and retention as well as the legal and business risks associated with the decisions.
Crisis Management Last, but certainly not least, the scenarios depicted in this alert—and the possibility that matters related to them go viral on social media— are a reminder that companies should have crisis management plans in place. As we have continually urged during the past year, you must
have a crisis management plan that contemplates future impacts of an immediate response to negative publicity and reputational harm. Have you planned for the fallout from the “crisis,” which is defined as an abnormal and unstable situation that significantly threatens the organization’s strategic objectives, reputation, or viability? Crises are normally determined by how they impact an organization’s people, environment, assets, and/or reputation. Communication is key, and you need to quickly develop the crisis response considering what is important, audience perception, who needs to be addressed, what needs to be said, and method of communication. Equally as important, you are already engaging with your public relations team and procedures to plan for a response that will formulate the long-term message with a focus on rebuilding reputation. This requires a controlled message and clear coaching of the company’s representatives. Having reviewed your crisis management plan with your business teams and legal experts on a periodic basis is a necessity in just these situations.
Prepare Now All signs indicate that these issues may be with us for a while. Here are a few things to consider: • Determine what state and local laws are applicable to the off duty conduct of your company’s employees. • Review state law “public policy” claims to determine what impact, if any, they have on these issues. • Review your code of conduct and company policies to make sure that, consistent with applicable law, they address off-duty conduct that negatively impacts the workplace or the company. • Consider messages, bulletins, meetings, and training to educate employees regarding the company’s stance regarding such activities. Ensure that employees are aware of COVID-19 procedures and the ramifications of violating those procedures or making false statements on company forms. • Make sure that you have worked with your media relations team to ensure that you have messages and plans ready in the event the company’s name makes the national news because its logo is worn by someone engaging in unlawful behavior. Coming to employment decisions related to these complicated issues requires balancing a host of legal, ethical, cultural, health, and corporate considerations. n Brooke Iley and William J. Anthony are attorneys at Blank Rome, LLP. Brooke Iley counsels and defends domestic and foreign corporations in all areas of employment and labor law compliance and litigation, including wrongful termination, discrimination, harassment, wage and hour class and collective actions, trade secret disputes and data protection, and alleged fiduciary breaches. She represents clients in negotiations, litigations, and arbitrations nationally in these areas. William J. Anthony focuses his labor and employment practice on class, collective, and multi-party actions, including a broad spectrum of federal and state law wage and hour claims. Learn more at: https://www.blankrome.com.
Attorney Journals San Diego | Volume 210, 2021
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