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By Camille, on February 14th, 2012
Are you practicing law like the learned astronomer of Padua?
He refused to look into Galileo’s telescope. He was afraid that what he saw might shake his most basic assumptions of how the universe works. So he joined with those who wanted to get rid of Galileo and destroy his newfangled instrument.
There was only one small problem: Galileo was right. What lay beyond his lens was not the end of the world but the beginning of understanding it better.
Social media is a modern telescope. Through it, the world – and our profession – looks radically different than it did just a few short years ago.
Facebook, blawgs and YouTube are changing the way legal services are packaged, priced and delivered. They are being used to recruit associates, negotiate contracts and attract new clients. Through online networking, law firms are able to introduce themselves to a worldwide audience at little or no cost.
Meanwhile, whole new practice areas – in employment law, intellectual property and privacy rights – are opening up.
Of course you can always choose to shun this new technology (which these days is only considered “new” by people of a certain age), condemn the manufacturer, and threaten to punish anyone who uses it.
Or you can open your mind. Enter a brave new world. Talk with colleagues about how to put these incredible tools to professional use in an enlightened and ethical manner.
Because that is all they are – tools. Like letter openers and legal pads, only with the power to topple government regimes. And they’re not going away.
All of this is not to suggest that every lawyer should rush out and start blogging. If you’re happy with your IBM Selectric, relax. Nobody is threatening to take it from you.
But consider this. Your future clients and employees are growing up in a world where social media is about as radical as a bicycle. They’ve already looked through the telescope. They get it. You will be well served by at least knowing what they mean by tweeting.
Education is always a good first step. Since February is CLE month, why not take a class on “Attorney Online Ethics” or “Picking a Jury Through Facebook.” Click here for a list of North Carolina-accredited courses (enter the keywords “social media”) along these lines.
Another great resource is the January/February 2012 issue of the ABA’s “Law Practice” magazine. The entire edition is devoted to social media. Articles provide online marketing tips and guidelines for developing a social media policy for your firm. Click here to read the whole thing for free.
So don’t be afraid. Step right up to the telescope and have yourself a good, long look. Who knows what wonders await?
By Camille, on January 27th, 2012
 Instant gratification has gotten a bad rap.
Daily we are warned by everyone from economists to exercise gurus to reject the quick fix in favor of deliberation, dogged diligence and delayed enjoyment. And make no mistake. These are all good and necessary virtues, especially in our profession.
But sometimes, success means knowing what you want and going for it. Now. Today. Right this minute.
Just ask Joshua Rosenkranz. He was named by American Lawyer as one of its 2011 Litigators of the Year for his work on a major trademark/copyright case. Rosenkranz represented MGA Entertainment, the maker of Bratz dolls, in a dispute against competitor Mattel, the maker of Barbie. After Mattel obtained an injunction requiring MGA to stop making Bratz and turn over its entire trademark portfolio, MGA appealed.
In his argument to the Ninth Circuit, Rosenkranz urged the panel to Just Do It and not waste time pondering the matter.
“Our entire strategy revolved around that moment in oral argument when we got to say to the court we beg you, if there’s anything you can do, do it now because if you issue an opinion in a few months the company will already be dead,” he says in a video interview with American Lawyer. “I could tell it struck an emotional chord. There was utter silence. You could hear a pin drop in that courtroom. There was this pregnant moment where people were half-expecting the court to actually do something right there.”
That didn’t happen. Instead the court waited a whopping four hours before issuing an order staying the injunction. When Rosenkranz got the news on his way back to his office, he said he screamed with joy.
Clients love quick results. What they don’t love is waiting in a lobby, waiting for a court date or waiting, period.
And from the practitioner’s perspective, nothing is sweeter than closing a file swiftly and successfully.
Yes, of course, haste sometimes makes waste. And slow and steady does indeed win some races.
But too often we practice with the Fierce Urgency of Whenever.
Why put off until later what can be done this second? If we fall into a habit of deferring action and sleeping on problems, we just might wake up like Rip Van Winkle to find the world has passed us by.
By Camille, on December 20th, 2011
 We should all be so lucky as to have a client whose case garners the attention of the news media. However, such cases present opportunities for running afoul of the Rules of Professional Conduct and caution should be the watchword. One need look no further than the infamous “Duke Lacrosse case” to see the danger of making extrajudicial statements to the Press. In its Order of Discipline, the State Bar chronicled 29 separate instances where Mike Nifong made extra-judicial statements to representatives of the news media in violation of Rule 3.6 of the North Carolina Rules of Professional Conduct.
Rule 3.6 governs what one can and cannot say to the Press about a case in which he or she is involved. Generally speaking, the Rule prohibits a lawyer from making statements that the lawyer knows or should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding. (Rule 3.6(a)). And if the Rule applies to one, it applies to all. That is, no lawyer associated in a firm or governmental agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a). Nonlawyer assistants must be cautioned as well. Any lawyer subject to Rule 3.6 must take reasonable measures to insure compliance of nonlawyer assistants (Comment [3]), and is himself subject to professional discipline under Rule 5.3 (RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS) for a violation of Rule 3.6 by a nonlawyer assistant. It should go without saying that a lawyer subject to Rule 3.6 may not employ agents to make statements that the lawyer is prohibited from making.
Paragraph (b) of Rule 3.6 identifies at least seven specific matters about which a lawyer’s statements would not be considered in violation of Rule 3.6. Such matters as the claim or offense involved, the identity of the person involved (except when prohibited by law), information contained in a public record, and other subjects that would not ordinarily be considered to present a “substantial likelihood of material prejudice.”
At the other end of the spectrum, Comment [5] identifies certain subjects that are more likely than not to have a material prejudicial effect on a proceeding. For example, subjects relating to the character, credibility, reputation, or criminal record of a party, suspect or witness; any opinion on the guilt or innocence of a defendant or suspect; or information that the lawyers know or should know would be inadmissible at trial and that would, if disclosed, likely prejudice the right to a fair trial. One will find a number of the subjects identified in Comment [5] among the subjects about which Mr. Nifong commented to the news media, as recorded in the State Bar’s Order of Discipline.
Importantly, Rule 3.6(c) creates a “safe-harbor” provision: A lawyer may make a statement otherwise prohibited by Rule 3.6(a) if a reasonable lawyer would believe the statement is required to protect the client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.
Rule 3.6 embodies the tension between the First Amendment’s right of free speech and the lawyer’s obligations to the courts, the profession and to the administration of justice. The United States Supreme Court has noted that a State may regulate speech by lawyers representing clients in pending cases more readily than it may regulate the press. See e.g., Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991). This does not mean, of course, that a lawyer forfeits all free speech rights about a case in which he or she is involved. Trained in the complexities of the law, and generally considered credible in regard to pending litigation in which they are involved, lawyers are a crucial source of information and opinion. However, for the same reason, the lawyer’s right of free speech is proscribed to a greater degree than the general public because of the countervailing right to a fair and impartial trial.
If you have a client whose case is of public interest and you receive inquiries from the press, follow these rules:
- Resist the temptation to become “The Story.” The Duke Lacrosse case is an example of a prosecutor getting caught up in the sensationalism and fervor of a “national” story. Don’t let your 15 minutes of fame become the seemingly never-ending, nightmare of an ethics inquiry.
2. “Just say ‘no.’” The best advice is to make no comment about a case in which you are involved. If you cannot manage that, review Rule 3.6 before you make any comment, write out your comment tailoring it what is allowed under the Rule, and then read it. “Off the cuff” comments are almost guaranteed to get you in trouble.
3. If a statement is required to protect your client from the substantial undue prejudicial effect of recent publicity not caused by you or your client, remember to limit your statement to such information as is reasonably necessary to mitigate the recent adverse publicity. The safe-harbor provision of Rule 3.6(c) is not a license to say anything. Again, avoid “off the cuff” statements. Write out your comments and stick to your script.
By Camille, on November 30th, 2011
 It seems like every day I read about someone getting into trouble for a posting on social media. Whether it is the college student who had a job offer rescinded for a negative tweet or a worker getting fired for Facebook, people are facing consequences for what they say online. As a result, I am very careful about what I say online. However, it is equally important to monitor what I say in public.
Recently, I was reminded of this important lesson—be careful what you say, you never know who is listening.
My co-worker and I spent an afternoon watching a movie being filmed in downtown Raleigh starring Emily Blunt and Colin Firth. As soon as Colin Firth stepped out of the car, we were twelve year old girls at a Justin Bieber concert.
About two hours into our waiting for Colin Firth to notice us, a woman nonchalantly sat next to my co-worker and I and engaged us in a conversation. While she never identified herself as a reporter, it became apparent she was. During her interview with us, the reporter asked where we worked. As soon as I told her I worked at Lawyers Mutual, a woman standing in front of us turned around and asked me who my boss was. As it turns out, this fellow crowd member worked for one of our local law schools, is a close friend of my boss and partners with my company throughout the year.
Later that night, as I was thinking about the interview, I realized how lucky I was to have not said anything about my company while watching the movie filming. It would have been so easy for my co-worker and I to discuss our jobs or our company during the four hours spent trying to get Colin Firth and Emily Blunt to notice us.
Had we said anything negative about our company, at least two things bad things could have happened:
1. Our negative comments could have been published in a newspaper as we had no idea how long the reporter had been standing in the crowd near us.
2. My boss’s friend could have overheard our conversation and told my boss what she heard.
Either of these scenarios could have ended with us receiving a reprimand or worst case scenario, losing our jobs.
So whether it’s posting a picture online, updating your status or, I now realize, out to coffee with friends, be careful what you say in public. Talk about last night’s game or Kate Middleton, but don’t air your company’s dirty laundry. Save work talk for a more secure location.
Oh, and yes, my co-worker and I did get to meet Colin Firth and Emily Blunt! Check out the Lawyers Mutual Facebook page to see pictures.
By Camille, on October 11th, 2011
I love free. Today, I received a coupon for a free Joey Bag of Donuts burrito from the new Moe’s opening near me. Last week, I received a $5.00 Starbucks gift card, now I’m looking forward to my free Green Tea Frappuccino.
In your business, you write checks for things that are very expensive. Rent, salaries, overhead expenses and technology just to name a few. At Lawyers Mutual, we believe in giving you some things for free. Why? Because everyone loves getting something for free, and because we value our relationship with our insureds. We know that by offering you value we’ll receive your trust and loyalty. Here’s a look at some free things that you can get from Lawyers Mutual. Continue reading “What is Better Than Free?” »
By Camille, on September 14th, 2011
 We are in the process of visiting law school campuses with the North Carolina Bar Association. We provide pizza and speak to the incoming class to welcome them to the profession. I asked our claims attorneys to share some survival tips. I hope you find some of these helpful.
“For me, it was pretty basic. I just studied a lot. You have to go into it with a commitment that you are going to do this thing for three years and then it will all be over. Final exams are everything in law school. I started studying for finals a long, long time before the exam. The other thing I would say is to learn to write like a lawyer. For some people, this is not natural, but it is an absolute necessity if you want to do well in law school and as a practicing lawyer. You can know everything that you need to know for the exam and still not do well if you can’t write like a lawyer.” Will Graebe, Vice-President of Claims Continue reading “Advice for Law Students” »
By Camille, on August 26th, 2011
 The 2011 legislative session saw major changes to how plaintiff’s personal injury lawyers will do business in the future.
One of the changes relates to evidence of medical expenses in a civil action. House Bill 542 added a new rule of evidence: Rule 414. New Rule 414 limits evidence offered to prove past medical expenses to evidence of the amounts actually paid to satisfy the bills. With regard to unpaid medical bills, the evidence is limited to amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied. This change in the law will obviously diminish the amount of medical expenses that can be put into evidence in the typical personal injury case and may have the effect of decreasing the potential jury verdict. House Bill 542 made this change in the law apply to actions commenced on or after October 1, 2011. One could certainly envision a mad rush to the courthouse to get personal injury actions filed before October 1. Continue reading “The Rules, They Are A-Changin’ by Mark Scruggs” »
By Camille, on August 3rd, 2011
“Claims repair” is a big part of what we do at Lawyers Mutual and July brought two successful claims repair efforts that enabled two of our insureds to avoid a malpractice claim. With the help of one of our defense lawyers in Wilmington, Vaiden Kendrick, we successfully argued that a default judgment that had been [...]
By Camille, on July 20th, 2011
Your three years of hard work has been building to two days at the end of July. I’ve heard from some of you recent grads over the past few weeks and I know you are nervous. I’ve polled the Lawyers Mutual claims attorneys for advice. I hope it’s helpful.
Get a good night’s sleep prior to the exam.
Don’t try to “show off” to the examiners on the essays. Answer the question they ask, not the one you want them to ask. Get in. Get out.
Laura Loyek shares a story of rubbing her eye right before the exam started only to have her contact lens disintegrate. She took the morning exam with one eye closed, then raced home at lunch to grab a new pair of contacts. Lesson learned? Bring a spare pair of contacts or your glasses. Continue reading “Advice for Taking the Bar Exam” »
By Camille, on June 13th, 2011
I recently spoke to law students at the Wake County Bar Association YLD Summer Associate Orientation. I asked them to name people they thought were likeable. Immediately, the names that were shouted out from the audience were Oprah, Lebron and Scotty. All three of these individuals have a passionate following and are well liked across a wide range of demographics, if we exclude Cleveland. What’s the lesson?
That being likeable is important. As a young lawyer, you might not spend many hours in your day thinking about whether you are likeable. Instead, you might think about whether you’re billing enough hours, you may think about whether your supervising attorney is pleased with your work product or whether your client is going to pay his bills. But I believe that if you are likeable, these rewards and others, will come your way. Continue reading “Pop Culture Teaches Valuable Career Skill – Likeability” »
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