tag:blogger.com,1999:blog-13768522978501654492024-03-13T06:04:42.838-05:00Practical ComplianceTopics generally focused on technology, law, government and management practices for small businesses and nonprofits. (Links to my Twitter and LinkedIn pages are at the end of the "Twitter Updates" sidebar, below right.)Lewis Kinardhttp://www.blogger.com/profile/17175506995265962354noreply@blogger.comBlogger92125tag:blogger.com,1999:blog-1376852297850165449.post-52378725300016762382019-04-19T12:07:00.002-05:002019-04-19T12:07:39.974-05:00THE POWER OF "YES IF"<br />
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<a href="https://2.bp.blogspot.com/-s1sodq8aC0E/XLn_7bV36AI/AAAAAAAAGtw/nr-zRRMaHL0_PdL4C9kXujE6hMlMfYsPwCLcBGAs/s1600/Yes-If.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="900" data-original-width="1600" height="225" src="https://2.bp.blogspot.com/-s1sodq8aC0E/XLn_7bV36AI/AAAAAAAAGtw/nr-zRRMaHL0_PdL4C9kXujE6hMlMfYsPwCLcBGAs/s400/Yes-If.jpg" width="400" /></a></div>
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THE POWER OF “YES, IF”<o:p></o:p></div>
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<br /></div>
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Inhouse lawyers get a bad rap in many companies when
honoring their dual mandates of <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">guardian</i></b> of the client’s legal interests
and <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">partner</i></b>
to the business leaders who strive to take the client higher and farther.<span style="mso-spacerun: yes;"> </span>When disparaging the legal department as “the
Department of ‘No’,” the business departments are expressing their frustrations
as well as their ignorance of each lawyer’s divided duties to internal and
external powers.<span style="mso-spacerun: yes;"> </span><o:p></o:p></div>
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<span style="mso-spacerun: yes;"><br /></span></div>
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Who else in a typical company has a professional license
that is subject to revocation by an outside authority for violating ethical
obligations to their own employer, even if that employer requests the action? <span style="mso-spacerun: yes;"> </span>Medical and other licensed professionals are
subject to professional rules, but none of those bodies attempts to regulate
the way they represent their employer’s interests on a daily level.<span style="mso-spacerun: yes;"> </span>Far from simply ensuring that someone doesn’t
commit a crime, the ethical rules that come with a law license mandate that inhouse
lawyers owe allegiance to the <i style="mso-bidi-font-style: normal;">organization</i>
that may conflict with the interests of other employees of that organization.<a href="file:///C:/Users/lewis.kinard/Documents/Personal/The%20Power%20of%20Yes%20If.docx#_edn1" name="_ednref1" style="mso-endnote-id: edn1;" title=""><span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="font-family: "Calibri",sans-serif; font-size: 11.0pt; line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;">[i]</span></span><!--[endif]--></span></span></a>
<o:p></o:p></div>
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<br /></div>
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Inhouse lawyers tend to be defensive when faced with such
criticism, but that cedes power to the critics.<span style="mso-spacerun: yes;">
</span>There is a better option.<o:p></o:p></div>
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<u><br /></u></div>
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<u>Balance of Power</u><o:p></o:p></div>
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<br /></div>
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In typical interpersonal relationships, there are several
sources of power.<span style="mso-spacerun: yes;"> </span>One or another person
may be perceived as more powerful than the others due to their expertise,
special access to information, ability to reward, ability to punish, emotional
connection or simply their title.<o:p></o:p></div>
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<br /></div>
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When a business leader seeks approval for something by the
legal department, they generally view the lawyer as having special expertise
but often also the ability to “punish” by withholding that approval or
reporting risky proposals.<span style="mso-spacerun: yes;"> </span>Hence, the attempt
to label legal departments as “the Department of No,” so often given to IT
departments.<span style="mso-spacerun: yes;"> </span>And, since power tends to
corrupt,<a href="file:///C:/Users/lewis.kinard/Documents/Personal/The%20Power%20of%20Yes%20If.docx#_edn2" name="_ednref2" style="mso-endnote-id: edn2;" title=""><span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="font-family: "Calibri",sans-serif; font-size: 11.0pt; line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;">[ii]</span></span><!--[endif]--></span></span></a>
and a solid “no” is faster and easier than most other answers, inhouse lawyers
have too often earned and validated that label.<o:p></o:p></div>
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<br /></div>
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Some might even say it is more laziness than guardianship,
but the result is that the lawyer exercises the authority and the
representative of the client resents it. <o:p></o:p></div>
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<u><br /></u></div>
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<u>Breaking Free</u> <o:p></o:p></div>
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<br /></div>
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These days, when a business leader encounters a “no,” their
training and experience activate problem-solving skills to find ways to turn
the “no” into a “yes.”<span style="mso-spacerun: yes;"> </span>Books have been
written and many sales and leadership courses taught on this subject.<span style="mso-spacerun: yes;"> </span>When Legal says “no,” some take that as a
challenge and the first part of that response is to ask for reasons.<span style="mso-spacerun: yes;"> </span>“Why not?” seeks a list of targets that, if
eliminated, can flip the answer.<span style="mso-spacerun: yes;"> </span>That
turns into “No, because,” followed by a list of reasons and justifications,
maintaining the power in the lawyer. <span style="mso-spacerun: yes;"> </span>“No”
is just a step in the dance toward getting a deal for skilled sales and
marketing people.<span style="mso-spacerun: yes;"> </span>Getting a list of the
obstacles is a way to recover some of that power.<o:p></o:p></div>
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<br /></div>
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“No, because” is an admonition as well as an invitation to
argue.<span style="mso-spacerun: yes;"> </span>It requires the lawyer to provide
the list—the whole list—of the component problems with the proposal.<span style="mso-spacerun: yes;"> </span>The implied message is, “fix all of these,
and the red light changes to green.”<span style="mso-spacerun: yes;"> </span>The
requester expects an automatic yes if all of the stated reasons are resolved.<span style="mso-spacerun: yes;"> </span>But that takes time and effort, and busy
professionals have other priorities.<o:p></o:p></div>
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<br /></div>
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Rather than spend time and effort on that type of
negotiation, a lot of staff look instead for ways to avoid having to ask
permission or for alternative means of getting the clearance they want for
their proposals.<span style="mso-spacerun: yes;"> </span>“Better to ask for
forgiveness, they say!” <span style="mso-spacerun: yes;"> </span>After all, their
bonus (or job) could be at stake and completing the proposed activity is one
way to save it; consequences, if any, won’t happen until much later.<o:p></o:p></div>
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<br /></div>
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The outcomes can be more problematic to clean up and rectify
if something goes wrong, of course, but by then, the deal is done and it may be
a long time down the road.<o:p></o:p></div>
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<u><br /></u></div>
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<u>A Rebalancing Act</u><o:p></o:p></div>
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<br /></div>
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There is another option that resets the balance of power in
a positive way, furthers the organization’s interests of growth and success,
and still honors the lawyer’s obligations to ensure that growth comes with
reasonable security.<span style="mso-spacerun: yes;"> </span>An option that
side-steps the potential for abuse of power and actually pursues both of the
lawyer’s duties.<o:p></o:p></div>
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<br /></div>
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That is what <b style="mso-bidi-font-weight: normal;">“Yes,
if”</b> is all about.<o:p></o:p></div>
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<br /></div>
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“Yes, if”<a href="file:///C:/Users/lewis.kinard/Documents/Personal/The%20Power%20of%20Yes%20If.docx#_edn3" name="_ednref3" style="mso-endnote-id: edn3;" title=""><span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="font-family: "Calibri",sans-serif; font-size: 11.0pt; line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;">[iii]</span></span><!--[endif]--></span></span></a>
is the opposite approach to “No, because.”<span style="mso-spacerun: yes;">
</span>It looks very similar and, to a degree, like a simple change of
semantics to find a nicer way to say no.<span style="mso-spacerun: yes;">
</span>It is much more than that.<o:p></o:p></div>
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<br /></div>
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“Yes, if” builds where “No, because” tears down.<span style="mso-spacerun: yes;"> </span>“Yes, if” engages, where “No, because”
disengages.<span style="mso-spacerun: yes;"> </span>“Yes, if” seeks
collaboration and equality, where “No, because” strives to preserve an
imbalance of power.<o:p></o:p></div>
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<br /></div>
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Yes, if” communicates “we’re going to work on this
together.”<span style="mso-spacerun: yes;"> </span>“No, because” tells the other
person, “<u>you</u> need to figure it out.”<o:p></o:p></div>
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<u><br /></u></div>
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<u>Using the Power of Yes</u><o:p></o:p></div>
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<br /></div>
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Legal departments should use “Yes, if” whenever humanly
possible.<span style="mso-spacerun: yes;"> </span>The lawyer still has to do his
or her homework; the lawyer’s role of guardian is still intact.<span style="mso-spacerun: yes;"> </span>There may still be a list of challenges to resolve
before the light will turn green.<span style="mso-spacerun: yes;"> </span>“Yes,
if” works to bolster the other role—that of partner or trusted advisor—without
reducing the protector role.<o:p></o:p></div>
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<br /></div>
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The magic power in “Yes, if” is rooted in the psychological
impact of hearing “yes” combined with the invitation to join in solving the
problem.<span style="mso-spacerun: yes;"> </span>It also proclaims:<span style="mso-spacerun: yes;"> </span>“you and your proposal are important, and I
am trying to help.”<o:p></o:p></div>
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<br /></div>
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“Yes, we can get that permit, if _______” engages the other
person in understanding and addressing the specific gaps that are needed.<o:p></o:p></div>
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<br /></div>
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“Yes, you can license that IP, if _______” motivates the
other person to activate their own network or locate resources that are needed.<o:p></o:p></div>
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<br /></div>
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“Yes, that contract can be finished this week, if ________”
assures the requestor that you see and hear them, appreciate their business
challenges, and value the relationship.<o:p></o:p></div>
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<br /></div>
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The part that follows each “Yes, if” is where the
requester’s energies can now be directed, whether it is sending in additional
information, making some phone calls, setting up a meeting, or other essential
tasks.<span style="mso-spacerun: yes;"> </span>The requester now knows how it
all fits together and what their role is in the process toward success.<o:p></o:p></div>
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<u><br /></u></div>
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<u>Yes, if…but</u><o:p></o:p></div>
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<br /></div>
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No approach is perfect for all situations.<span style="mso-spacerun: yes;"> </span>There are still going to be times when a
sincere “no” is better.<span style="mso-spacerun: yes;"> </span>You could take a
pure “yes, if” approach and make your list include one or more absolutely
unachievable obstacles.<span style="mso-spacerun: yes;"> </span>“Yes, if we can
turn off the Earth’s gravity,” or “Yes, if there are 14 days added to the
calendar this month,” make the exercise a joke.<span style="mso-spacerun: yes;">
</span>Honesty is essential to the trusted advisor role, as is mutual
respect.<span style="mso-spacerun: yes;"> </span>Give the respect you want to
receive.<o:p></o:p></div>
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<br /></div>
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But if you can couch your answer in “Yes, if” terms with a
list of conditions that are reasonable, even if difficult, and maintain an
attitude of collaborative problem solver, you will see your department’s
reputation evolve from “Department of No” to “Trusted Legal Advisor” without
engaging in or encouraging activities that increase risk to your client, the
organization.<o:p></o:p></div>
<div style="mso-element: endnote-list;">
<!--[if !supportEndnotes]--><br clear="all" />
<hr align="left" size="1" width="33%" />
<!--[endif]-->
<div id="edn1" style="mso-element: endnote;">
<div class="MsoEndnoteText">
<a href="file:///C:/Users/lewis.kinard/Documents/Personal/The%20Power%20of%20Yes%20If.docx#_ednref1" name="_edn1" style="mso-endnote-id: edn1;" title=""><span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="font-family: "Calibri",sans-serif; font-size: 10.0pt; line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;">[i]</span></span><!--[endif]--></span></span></a>
Much has been written about this tension.<span style="mso-spacerun: yes;">
</span>See, e.g., Michael W. Peregrine’s Jan. 8, 2015, post “Reclaiming the
General Counsel’s Role as Advisor on Organizational Ethics,” on The CLS Blue
Sky Blog (<a href="http://clsbluesky.law.columbia.edu/2015/01/08/reclaiming-the-general-counsels-role-as-advisor-on-organizational-ethics/">http://clsbluesky.law.columbia.edu/2015/01/08/reclaiming-the-general-counsels-role-as-advisor-on-organizational-ethics/</a>)
and Ben W. Heineman, Jr.’s article in the April 2007 issue of <i style="mso-bidi-font-style: normal;">Corporate Counsel.</i> <o:p></o:p></div>
</div>
<div id="edn2" style="mso-element: endnote;">
<div class="MsoEndnoteText">
<a href="file:///C:/Users/lewis.kinard/Documents/Personal/The%20Power%20of%20Yes%20If.docx#_ednref2" name="_edn2" style="mso-endnote-id: edn2;" title=""><span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="font-family: "Calibri",sans-serif; font-size: 10.0pt; line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;">[ii]</span></span><!--[endif]--></span></span></a>
From a statement attributed to Lord Acton in 1887.<o:p></o:p></div>
</div>
<div id="edn3" style="mso-element: endnote;">
<div class="MsoEndnoteText">
<a href="file:///C:/Users/lewis.kinard/Documents/Personal/The%20Power%20of%20Yes%20If.docx#_ednref3" name="_edn3" style="mso-endnote-id: edn3;" title=""><span class="MsoEndnoteReference"><span style="mso-special-character: footnote;"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="font-family: "Calibri",sans-serif; font-size: 10.0pt; line-height: 107%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;">[iii]</span></span><!--[endif]--></span></span></a>
This management tool is often attributed to Harrison “Buzz” Price, who was part
of Walt Disney’s dream team credited with revolutionizing the theme park
industry.<o:p></o:p></div>
</div>
</div>
<br />Lewis Kinardhttp://www.blogger.com/profile/17175506995265962354noreply@blogger.com1tag:blogger.com,1999:blog-1376852297850165449.post-32032842076844466602012-07-07T20:11:00.000-05:002012-07-07T20:11:20.166-05:00Employer Risks Related to Social Media PoliciesIn her July 6, 2012, blog post via LinkedIn, "<strong><em><a href="http://is.gd/yOiQBE" target="_blank">An Overview Of The NLRB's Most Recent Guidance On Social Media And Confidentiality Policies</a>,</em></strong>" (free LinkedIn membership required) <a href="http://www.laborlawyers.com/showbio.aspx?Attorney-Karen-Luchka&Show=2997&Display=Articles&Type=36" target="_blank">Karen Luchka</a> of the Columbia, S.C., office of Fisher & Phillips, LLP, does a great job of translating the accumulating bits of legal guidance that have come out of the NLRB.<br />
<br />
The three reports she references can be found on the NLRB website at these links:<br />
<br />
Memorandum 11-74: <a href="http://mynlrb.nlrb.gov/link/document.aspx/09031d458056e743" target="_blank">August 2011</a><br />
<br />
Memorandum 12-31: <a href="http://mynlrb.nlrb.gov/link/document.aspx/09031d45807d6567" target="_blank">January 2012</a><br />
<br />
Memorandum 12-59: <a href="http://mynlrb.nlrb.gov/link/document.aspx/09031d4580a375cd" target="_blank">May 2012</a><br />
<br />
The first two memos discussed various charges related to employer-employee disputes over Facebook usage. The newest memo covers seven cases where the Board evaluated employer policies on social media. In six of them, the Board found the policies overbroad, but in the seventh, the policy was upheld. <br />
<br />
Acting General Counsel Lafe Solomon even included the validated policy as an attachment to the May 2012 memo.<br />
<br />
With Luchka's coverage of the memo, you have a good summary, but I recommend reading the memo for yourself and especially comparing your social media policy against the one--the only one so far to my knowledge--that the Board validated. And remember: NLRB guidance is not just for employers with unionized workers!Lewis Kinardhttp://www.blogger.com/profile/17175506995265962354noreply@blogger.com1tag:blogger.com,1999:blog-1376852297850165449.post-47852361721546469792012-06-25T20:41:00.001-05:002012-06-25T20:41:56.239-05:00Hyper Cybersecurity for Lawyers?<br />
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<a href="http://4.bp.blogspot.com/-yPqMMxkIhTY/T-iww66fkxI/AAAAAAAAAVg/LgIsQkvzBa4/s1600/Lawyer+Tools.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="213" rca="true" src="http://4.bp.blogspot.com/-yPqMMxkIhTY/T-iww66fkxI/AAAAAAAAAVg/LgIsQkvzBa4/s320/Lawyer+Tools.jpg" width="320" /></a></div>
In a June 25, 2012, Wall Street Journal article, "<a href="http://professional.wsj.com/article/SB10001424052702304458604577486761101726748.html?mod=WSJ_hps_sections_tech" target="_blank">Lawyers Get Vigilant on Cybersecurity</a>," Jennifer Smith describes a number of security breaches and attempted hacks at law firms around the U.S. One of the scenarios describes hackers who target lawyers' smart phones to gather confidential information about the lawyers clients or legal services. While most would argue that a law firm has a duty to use reasonable means to keep all equipment provided to the firm's employees, including smart phones, free from such malware, does that also apply to the personal devices used by firm employees? What about online shared file services like DropBox, Box.com or Google Drive, where lawyers and clients can exchange documents electronically?<br />
<br />
<u>The Rules</u><br />
Though most laws that cover cybersecurity also apply to lawyers and law firms, additional duties apply under rules of professional conduct ("ethics") and concepts of fiduciary responsibility under the law of agency. The present American Bar Association Model Rules of Professional Conduct contains <a href="http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information.html" target="_blank">Rule 1.6(a)</a> which reads: <br />
<blockquote class="tr_bq">
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).</blockquote>
<br />
The rule language, adopted in most states as binding on lawyers admitted to practice in those states, is very broad. Two comments to the rule provide some clarity, though they were obviously written before smart phone hacking was perceived as a big risk to the legal profession. I have emphasized some key language in <a href="http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information/comment_on_rule_1_6.html" target="_blank">Comments 16 and 17</a> below.<br />
<blockquote class="tr_bq">
[16] <strong><em>A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer's supervision.</em></strong> See Rules 1.1, 5.1 and 5.3.<br />
<br />
<br />
[17] When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. <strong><em>This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions.</em></strong> Factors to be considered in determining the reasonableness of the lawyer's expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule.</blockquote>
The rule and comments could be construed to require, depending on whether the state has adopted the ABA version of Model Rules 5.1 and 5.3, the law firm to take reasonable steps to protect client confidences regardless of whether the confidential information is transmitted via a firm-issued or employee-provided device. That is a huge expansion of the domain most firm IT departments are given and potentially significant increase in cybersecurity costs.<br />
<br />
The ABA is currently considering changes in this area. On May 7, 2012, the <a href="http://www.americanbar.org/groups/professional_responsibility/aba_commission_on_ethics_20_20.html" target="_blank">ABA Commission on Ethics 20/20</a> published several proposals that will be considered by the ABA House of Delegates this August. One Resolution and Report specifically addresses "<a href="http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/2012_hod_annual_meeting_105a.authcheckdam.pdf" target="_blank">Technology & Confidentiality</a>." Recognizing the fast-evolving world we work in, the Commission observed:<br />
<blockquote class="tr_bq">
Today, lawyers regularly communicate with clients electronically, and confidential information is stored on mobile devices, such as laptops, tablets, smartphones, and flash drives, as well as on law firm and third-party servers (i.e., in the “cloud”) that are accessible from anywhere. This shift has had many advantages for lawyers and their clients, both in terms of cost and convenience. However, because the duty to protect this information remains regardless of its location, new concerns have arisen about data security and lawyers’ ethical obligations to protect client confidences.<br />
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Technology is also having a related impact on how lawyers conduct investigations, engage in legal research, advise their clients, and conduct discovery. These tasks now require lawyers to have a firm grasp on how electronic information is created, stored, and retrieved. For example, lawyers need to know how to make and respond to electronic discovery requests and to advise their clients regarding electronic discovery obligations. Legal research is now regularly and often more efficiently conducted online. These developments highlight the importance of keeping abreast of changes in relevant technology in order to ensure that clients receive competent and efficient legal services. (ABA Commission on Ethics 20/20 Report, "<a href="http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20120508_ethics_20_20_final_hod_introdution_and_overview_report.authcheckdam.pdf" target="_blank">Introduction and Overview</a>," p. 4, <em>footnotes omitted.</em>)</blockquote>
As a result, the Commission proposed a new paragraph (c) to Model Rule 1.6:<br />
<blockquote class="tr_bq">
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.</blockquote>
In addition, the Commission proposed a substantively revised Comment 16:<br />
<blockquote class="tr_bq">
[16] Paragraph (c) requires a <strike>A</strike> lawyer <strike>must</strike> to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons or entities who are participating in the representation of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1 and 5.3. The unauthorized access to, or the inadvertent or unauthorized disclosure of, confidential information does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to forgo security measures that would otherwise be required by this Rule. Whether a lawyer may be required to take additional steps to safeguard a client’s information in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules. For a lawyer’s duties when sharing information with nonlawyers outside the lawyer’s own firm, see Rule 5.3, Comments [3]-[4].</blockquote>
(Again, some of these changes will apply differently if your state does not have the exact ABA version of Rules 5.1 and 5.3.)<br />
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If adopted by the ABA House of Delegates, each state would then decide whether to adopt some or all of the changes in their rules of professional conduct. Until adopted in a state, the ABA Model Rules are purely advisory, of course, but can be used by courts as guidance on issues of professional liability.<br />
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<u>Pre-emptive Proactiveness</u><br />
So what should a firm do? First of all, a written policy is essential. Lay out practical guidance for the employees that (a) reminds them of all the obligations that everyone--not just those with a law license--must follow, (b) points out the places of vulnerability and highest risk, much like you would warn against posting passwords on the wall by their computer, (c) explains what the firm can and will do--and what it will not do--to help protect office systems and confidential data, (d) clarifies through several examples of what information is confidential and best practices for reasonable efforts to prevent unauthorized disclosures and (e) draws a bright line wherever possible between which activities are permitted and which are not--as well as how to request an exception in appropriate circumstances.<br />
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Secondly, be very deliberate as to which employees get what hardware. Some may only need a "dumb" device that has nothing stored on it locally, but can remotely access selected online resources in limited circumstances. Others may need full-functioning tools some days and the "dumb" devices on others. If you issue full-access hardware to everyone all the time, you may have a difficult time explaining how that is reasonable or part of a prudent program to prevent problems.<br />
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Thirdly, monitor. You may find that some IT policies are too restrictive and actually lead to more risk than they limit. If staff are emailing confidential, unencrypted documents to their gmail accounts so they can work on them at home, look for a better way to support their needs that does not send them to a self-devised work-around. If some people use their personal smart phones to talk to clients or co-counsel, determine if the firm should provide a phone it can routinely scan for viruses and remotely kill if lost, or if there is another way to help the lawyers work with less risk than an unprotected smart phone that could be home to listening and keylogging malware.<br />
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Fourth, educate the clients, too. All the security in the firm won't be worth much if the client waives lawyer-client privilege by working on personal legal matters through her employer's computer or does not have a virus protection program. The blame may be hard to place without a lot of forensic review and valuable time, even if you eventually confirm that no systems at the firm led to the disclosure.<br />
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Finally, know the law. Is your firm subject to the mandatory disclosure laws when private information is disclosed through a hack? Are you obligated to take preventive measures before a problem occurs? Each state has different levels of responsibility for unauthorized disclosure of client information and some rules that traditionally have been enforced only against consumer businesses could also be used against professional services businesses (think: medical records) unless there is an express exemption.<br />
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Bottom line: start now to put "reasonable" preventive measures in place to prevent unauthorized disclosures of confidential information and to comply with state and federal data privacy laws that may govern how you store data as well as report security breaches.<br />Lewis Kinardhttp://www.blogger.com/profile/17175506995265962354noreply@blogger.com0tag:blogger.com,1999:blog-1376852297850165449.post-91872779756858136982012-04-23T20:46:00.001-05:002012-04-23T20:48:05.732-05:00Launching New BlawgMy work on this blawg dropped off as I wrote and published <em><a href="http://www.amazon.com/dp/B007FLLB5K" target="_blank">Start and Grow Your Limited Scope Practice: How to Make Money Serving the "Do It Yourself" Client</a> </em>which you can purchase now on Amazon.com. Around the same time, I launched a companion blawg to focus on LSR issues, "Limited Scope Practice," over at <a href="http://www.limitedscopepractice.com/">http://www.limitedscopepractice.com/</a>. Going forward, I will keep the LSR content separate. <br />
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So click on over to the other blawg and take a look. I look forward to your thoughts and comments!Lewis Kinardhttp://www.blogger.com/profile/17175506995265962354noreply@blogger.com0tag:blogger.com,1999:blog-1376852297850165449.post-79421057364993399922011-03-17T02:56:00.000-05:002011-03-16T22:18:57.773-05:00Drafting Good Policies for Social Media Use at Work – Part Two<a href="http://2.bp.blogspot.com/_vPcFJjVxULY/SqafOqO3HeI/AAAAAAAAAM4/gKu7IhrUpNA/s1600-h/social+puzzle.jpg"><img style="MARGIN: 0px 10px 10px 0px; WIDTH: 320px; HEIGHT: 320px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5379161879144242658" border="0" alt="" src="http://2.bp.blogspot.com/_vPcFJjVxULY/SqafOqO3HeI/AAAAAAAAAM4/gKu7IhrUpNA/s320/social+puzzle.jpg" /></a><br />In my <a href="http://lewiskinard.blogspot.com/2009/09/drafting-good-policies-for-social-media.html">first post on this topic</a>, I covered some of the risks inherent when employees participate in social media systems (“SM”) whether officially on behalf of the employer or unofficially. This post outlines guidance for crafting an atmosphere at work that embraces SM while educating and guiding employees to prevent problems and protect the employer, other employees and the public.<br /><br /><u>Basic Policy</u><br /><br />Your organization may already have rules and regulations that apply to your industry or operations. You may even have agreements in place with each employee at hiring that cover confidentiality, protection of intellectual property and duties of non-disclosure. It may be that you already have all the official policy language you need to address the risks listed in the earlier posts should an employee cross any of those lines. Why have yet another one?<br /><br />SM gives people power of a magnitude they have not had before. Destructive, impulsive and malicious actions have never been as easy to permanently and broadly publicize as they are now that we have linked to each other through the Internet and mobile phone networks. Do not assume everyone will connect the dots. Even if you already have all the official and legal protections in place, pull it all together in a reminder that puts each obligation into the SM context. If you do not have everything covered, fill in the gaps. Make sure everyone clearly understands their obligations.<br /><br /><u>“Friending-Friendly" Rules</u><br /><br />Once your policies, confidentiality and non-disclosure agreements adequately cover the prohibitions and restrictions that apply to each employee, turn the opposite direction and put guidelines in place that help the well-intentioned. Rather than a list of “Do Not” items, for example, lay out the reasons for concern and points to keep in mind when communicating with others in any way that may involve or reflect on the employer or other employees. Phrase them in "Do" terminology.<br /><br />There are a number of resources rich with references and examples of how other organizations have approached this challenge. Several are listed in the footnote. Among them all, there are four main ingredients for an effective, comprehensive SM policy:<br /><br />1. <strong>Concern</strong>. Acknowledge the existence of SM. Some companies and organizations prefer an “ostrich approach” and essentially pretend SM is not pervasive, not used widely among their staff and poses no threats. What you don’t say CAN increase the risks to your organization, the public and your employees. Step forward and embrace reality. Make it a point to show you know and understand the power, potential and pitfalls of SM usage and that you are establishing consistent guidance that makes sense within the organization’s particular needs.<br /><br />2. <strong>Community</strong>. Stress the importance of being transparent and clearly distinguishing whether you are or are not representing the organization. Leave no doubt. This is an issue of honesty to their "friends" and integrity in their online community. Give examples of how to scrub online profiles of all links to the organization, for example, and disclaimer language that you believe is sufficient and appropriate for most contexts. Explain how others may be confused by a person's role or position with the organization so they clearly see the risk. Employees of a legal department could be misunderstood as giving legal opinions, for example; those who work for a publicly-traded company might be misinterpreted as divulging hints that influence others to buy or sell stock in that company; behaving as if you have "secret" information could look like someone revealing previously non-public facts about the company; etc.<br /><br />Be detailed and specific. Explain how links, logos, email addresses, lingo and job titles may divulge or mislead as to their relationship to the employer even if the employer’s name is not shown. There should also be a consistent method of “branding” officially-sanctioned SM activities so the public can easily identify those and distinguish them from others.<br /><br />3. <strong>Conduct</strong>. Remind staff of the public nature of “private” postings and how online activities may be traced. Share some examples of embarrassing consequences others have endured that make an inadvertent “reply all” mistake look miniscule by comparison. Respect runs both ways and the “Golden Rule” and “Granny’s Rule”* are useful guidelines that help make your point. It is always wise to assume that your staff will NOT make the same assumptions you do. Employees are diverse in many ways other than skin color, so spell out the workplace rules that govern appropriate uses of SM during working hours, on the employer’s equipment, etc. Just because activities are permitted or even encouraged in the organization’s Wiki, for example, does not transfer to personal blogs or other non-work-related SM activities.<br /><br />4. <strong>Confidentiality</strong>. What one person thinks is “confidential” or covered by your confidentiality policy may be quite different from what another thinks. Remember that people in different jobs have different perspectives and may have been taught different obligations based on their roles. This is a good place to roll it all into one statement that summarizes and refers to the restrictions and duties regarding confidentiality, professional responsibility, non-disclosure, privacy, public/non-public information, trade secrets and communication with people outside the workgroup. You might be amazed at how some never connect themselves to the bigger picture.<br /><br />Someone in the IT department may not think twice about posting a question in a peer support Wiki that can expose security weaknesses or divulge trade secrets if they are not made aware of how easy it is to do. A support staff member may not be aware of how rules of professional responsibility that govern the supervisors apply to his work. Those who do not often work with the public or in a PR function may overlook the issues with commenting about a particularly problematic day at work or potentially disastrous issue they are working to contain. Trust them to do the right thing the vast majority of the time, but equip them to understand where the boundary lines are so they do not accidentally cross them.<br /><br /><u>Conclusion</u><br /><br />Your policy documents will have more detail under each of these general areas that fit your organization’s unique needs. If you don’t already have the fundamental policies and employee agreements in place, you may need to consult legal counsel about what to do. If your employees are located in more than one jurisdiction, you definitely need to know what difference that may make on any such policy and whether you can consolidate them all into one document or need different versions.<br /><br />Social media has been here long enough that no one seriously expects it to go away anytime soon. Rather than obstruct or block SM use, proactively educate your staff and address the risks, responsibilities and rewards of appropriate social media usage and you will more likely benefit from risk containment as well as employee confidence in your leadership.<br /><br /><br />_______________________________<br />* The "Granny Rule:" If you wouldn't want Granny to see it online, don't post it.Lewis Kinardhttp://www.blogger.com/profile/17175506995265962354noreply@blogger.com1tag:blogger.com,1999:blog-1376852297850165449.post-13234474675078207102011-03-14T04:21:00.000-05:002011-03-14T04:21:00.739-05:00Who Owns the Copyright in Work Created While Employed? (cont'd)<a href="http://4.bp.blogspot.com/-hazEFp3UUmE/TXVbn9htLFI/AAAAAAAAASA/Qk8LnjOwMtE/s1600/CDROM.JPG"><img style="MARGIN: 0px 0px 10px 10px; WIDTH: 274px; FLOAT: right; HEIGHT: 185px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5581468055284558930" border="0" alt="" src="http://4.bp.blogspot.com/-hazEFp3UUmE/TXVbn9htLFI/AAAAAAAAASA/Qk8LnjOwMtE/s200/CDROM.JPG" /></a>Employers and employees can prevent a lot of problems by clarifying their rights to intellectual property in writing at the beginning. In the <a href="http://lewiskinard.blogspot.com/2011/02/who-owns-copyright-in-work-created.html">first post on this subject</a>, I listed several things to keep in mind when creating an agreement that covers copyrights (and most other intellectual property rights) between employer and employee or when hiring contract services.<br /><br />1. Who owns what?<br />2. How will the employer “pay” for the creator’s rights?<br />3. What is covered by the agreement?<br />4. What duties does each party owe to the other?<br />5. What about work product the employer sells to others?<br />6. How will each address exceptions?<br />7. When does the IP rights agreement start and end?<br />8. How will disputes be handled?<br />9. What happens if the parties can’t resolve a dispute themselves?<br /><br />In that post, I covered the first four. Now, I will address the rest.<br /><br /><u>What about work product the employer sells to others?<br /></u>When one person sells the work of another who is the author of some or all of the work, the author is generally still entitled to compensation unless the author has given up that right. Not so for “works made for hire.” Because the copyright is automatically given to the employer, the author can not revoke or claim an interest in the rights without an express conveyance from the employer or a written agreement with the employer at the time the work was created (<a href="http://www.law.cornell.edu/copyright/copyright.act.chapt2.html">17 USC 203(a)</a>).<br /><br />A clearly-worded written agreement at the outset can allocate any rights that will not be exclusive to the employer (exceptions) and any rights reserved by the employee.<br /><br /><u>How will each address exceptions?</u><br />Some agreements attempt to cover everything the author creates during the employment term, whether or not related to the employer’s business. Those are likely not enforceable beyond what is reasonably tied to the employer’s business or created using the employer’s tools, equipment or proprietary processes, without special "consideration" to pay for works created outside the scope of employment. Others are less clear about work authored at home after work hours, for example, or in concert with others who are not employees of the same employer.<br /><br />Better to be clear. Describe the works that are deemed included and then list the exceptions. Are some rights world-wide, for example, while others only have a limited geographical license? Are they exclusive rights, meaning no one else can have them at the same time? Are there rights reserved to the author for certain limited uses?<br /><br />It is difficult to anticipate every possible future event, so provide a mechanism for each party to notify the other that a particular work is included in or excluded from the agreement’s scope.<br /><br /><u>When does the IP rights agreement start and end?<br /></u>Unless the work is "prepared by an employee within the scope of his or her employment; or<br />". . . “the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire” (<a href="http://www.law.cornell.edu/copyright/copyright.act.chapt1a.html#17usc102">17 USC 101) (1)</a>), or the author transfers the copyright with “an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent,” (<a href="http://www.law.cornell.edu/copyright/copyright.act.chapt2.html">17 USC 204(a)) (2)</a>), the author retains full rights. Parties can agree to buy or sell their respective rights in intellectual property at any time, whether the works already exist at the time of the agreement or are created in the future. Designate the specific starting date and describe when it terminates.<br />Address the rights that will survive termination of the agreement and those that expire with it so that both sides know their obligations even after they part ways. For any that continue after they separate, be clear on the term, geographical scope and relative priority of the rights.<br /><br /><u>How will disputes be handled?</u><br />If one party disagrees with the other’s interpretation or application of some part of the agreement, what is the preferred method of documenting the concern and the resolution? Are specific people or documents required? Will the procedures produce a result for future reference if needed?<br /><br />Most agreements address litigation restrictions, but many fail to outline informal dispute resolution procedures or emphasize that they are preferred or even required before either party may begin legal action. You don’t have to go as far as a binding arbitration clause, but you can still guide disputes through a pre-litigation attempt to resolve them.<br /><br /><u>What happens if the parties can’t resolve a dispute themselves?<br /></u>As with pre-nuptial agreements, where the pre-wedding couple dislikes thinking about divorce at the beginning of their marriage, employers and new employees dislike thinking about litigation when they are about to enter their “honeymoon phase.” Even so, it is important to nail down the laws that will apply to the agreement, the place where any legal action must be filed and any other variables that may change the terms of the agreement down the road as circumstances change. You need predictability and confidence that a provision in the agreement will not be turned on its head should one party relocate to another jurisdiction with different laws and legal procedures.<br /><br />Here is where you can insert the arbitration clause, if desired. Also address venue, applicable rules of procedure and law and how costs of litigation will be divided if one party prevails over the other in the litigation.<br /><br /><u>Other Issues<br /></u>This post does not address the issues that come up when an author conditionally grants a license to another who then breaches the license terms or fails to warn a subsequent purchaser of the original license terms. I discussed some of these risks in <a href="http://lewiskinard.blogspot.com/2009/05/does-unlicensed-software-put-your.html">an earlier post</a>, but there are many more to cover at another time.<br /><br /><u>Conclusion</u><br />With a well-written agreement that both parties understand, many disputes can be prevented and those that do arise can be managed. Think through the situation from both sides, use plain language whenever you can, and get solid legal advice before you sign. With those and some luck, you should be able to avoid problems down the road.Lewis Kinardhttp://www.blogger.com/profile/17175506995265962354noreply@blogger.com0tag:blogger.com,1999:blog-1376852297850165449.post-17579940907579230852011-03-09T23:37:00.001-06:002011-04-14T17:26:19.540-05:00For The Children<a href="http://4.bp.blogspot.com/-74O30BxBlJM/TXQ-rau8M6I/AAAAAAAAAR4/nVeCliHlMXQ/s1600/homeless%2Bchild.JPG"><img style="MARGIN: 0px 10px 10px 0px; WIDTH: 200px; FLOAT: left; HEIGHT: 198px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5581154753850389410" border="0" alt="" src="http://4.bp.blogspot.com/-74O30BxBlJM/TXQ-rau8M6I/AAAAAAAAAR4/nVeCliHlMXQ/s200/homeless%2Bchild.JPG" /></a>It’s not their fault their landlord refuses to do something about the mold in their building, even though more than half the kids living in that building have respiratory infections and other signs of continuous allergic reactions to mold and mildew. It’s not their fault the food stamp office lost their paperwork and cancelled their food assistance about the time they ran low on food. It’s not their fault a man hurt their mother repeatedly and frightened her so much she took them away one night with very few clothes or toys to a strange place with others like them. It’s not their fault the man who said he would fix the family’s only car is now saying he will sell it in 5 days unless they pay three times what he estimated (which is twice the money they have). They did nothing wrong. They did nothing to cause the problems. There is nothing they can do on their own to fix them. Yet the consequences will affect them at least as much as their parents. “They” are children in low-income families in the United States. Some of them have always done without. Some of them are not used to this new life style. All of them live with more than their share of stress and anxiety in their lives. People charged with serious crimes can get a lawyer appointed to defend them. The state government will try to get child support orders in place if their parent has been on public assistance. Who will help these children and their parents fight the slumlord, straighten out their benefits paperwork, obtain an order for protection against an abuser or prevent the loss of their car through fraud? The answer is: the lawyers and other legal staff at legal services, legal aid and similar non-profit organizations who work to right the wrongs that should not happen. <u>A Bipartisan Success</u> George Washington, in a letter to Attorney General Edmund Randolph in 1789, wrote that he believed “the due administration of justice is the firmest pillar of good Government.” (<span style="color:#666666;">1</span>) Congress created the Legal Services Corporation because it found in 1974 that: <br /><blockquote>(1) there is a need to provide equal access to the system of justice in our Nation for individuals who seek redress of grievances; (2) there is a need to provide high quality legal assistance to those who would be otherwise unable to afford adequate legal counsel and to continue the present vital legal services program; (3) providing legal assistance to those who face an economic barrier to adequate counsel will serve best the ends of justice and assist in improving opportunities for low-income persons consistent with the purposes of this Act. (4) for many of our citizens, the availability of legal services has reaffirmed faith in our government and laws; (5) to preserve its strength, the legal services program must be kept free from the influence of or use by it of political pressures; and (6) attorneys providing legal assistance must have full freedom to protect the best interests of their clients in keeping with the Code of Professional Responsibility, the Canons of Ethics, and the high standards of the legal profession. (<strong><span style="color:#666666;">2</span></strong>) </blockquote><br /><p>The bill passed with bi-partisan support in the House of Representatives (276 to 95) and the Senate (75 to 18) and was signed by President Nixon on July 18, 1974. (<strong><span style="color:#666666;">3</span></strong>) It has enjoyed strong bi-partisan support for over 30 years.(<span style="color:#666666;">4</span>) <u>LSC Works</u> Aided by a legion of volunteer lawyers who donate some of their time to and through pro bono programs, these paid staff know that “injustice anywhere is a threat to justice everywhere.” (<strong><span style="color:#666666;">5</span></strong>) They work full-time to help as many people as they can in civil legal matters that high-income families will likely never have but would have the resources to address timely and completely. LSC is the single largest provider of civil legal aid for the poor in the nation. Designed on a “conservative” agency model, LSC distributes 95% of its funding to 136 non-profit law firms who hire the staff and work on the unmet legal needs in their communities. (More <a href="http://www.lsc.gov/about/lsc.php">here…</a>) Today, in the race to hastily slash the federal budget, Congress is considering huge cuts and potential elimination of the Legal Services Corporation. Hopefully, those scenes will not occur here our representatives will reconsider and see the savings LSC’s grant recipients deliver in exchange for their funding. </p><br /><p><u>Keep LSC Working</u> If you work in the legal profession, you can help by contacting your U.S. Representative and showing your support for this program. Make your local legal aid program your "charity of choice." Tell your friends and family why you believe in "<em>equal justice under law</em>" or recite the Pledge of Allegiance that ends with "<em>...and justice for all</em>" and ask them to write or call. </p><br /><p>Better yet: ask them to do it for the children. They can't fight this themselves. </p><br /><p><u>NOTES</u></p><br /><p><span style="font-size:85%;"><a href="http://3.bp.blogspot.com/-kchjjTW0Q_o/TXQ9qBVEz9I/AAAAAAAAARw/9ShnN5Qhuoc/s1600/children.JPG"><img style="MARGIN: 0px 10px 10px 0px; WIDTH: 231px; FLOAT: left; HEIGHT: 151px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5581153630339518418" border="0" alt="" src="http://3.bp.blogspot.com/-kchjjTW0Q_o/TXQ9qBVEz9I/AAAAAAAAARw/9ShnN5Qhuoc/s200/children.JPG" /></a><span style="font-size:85%;">1. </span><a href="http://memory.loc.gov/cgi-bin/query/r?ammem/mgw:@field(DOCID+@lit(gw300376))"><span style="font-size:85%;">George Washington to Edmund Randolph, September 28, 1789</span></a></p></span><br /><p><span style="font-size:85%;">2. </span><a href="http://www.lsc.gov/laws/act.php"><span style="font-size:85%;">Legal Services Corporation Act, 42 U.S.C. 2996</span></a></p><br /><p><span style="font-size:85%;">3. </span><a href="http://thomas.loc.gov/cgi-bin/bdquery/D?d093:10:./temp/~bdhY64:@@@R/home/LegislativeData.php?n=BSS;c=93"><span style="font-size:85%;">Library of Congress Legislative Histories</span></a><span style="font-size:85%;">.</span></p><span style="font-size:85%;">4</span>. <a href="http://www.lsc.gov/press/updates_2008_detail_T220_R27.php"><span style="font-size:85%;">Remarks to New Mexico Bar Association reception in Albuquerque, Oct. 20, 2008.</span></a> <br /><p></p><br /><p><span style="font-size:85%;">5. From </span><a href="http://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html"><span style="font-size:85%;">“Letter from</a><a href="http://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html"> a Birmingham Jail,</span></a><span style="font-size:85%;">” April 16, 1963 (4th paragraph).</span></p><br /><p><span style="font-size:85%;"></span></p><br /><p><span style="font-size:85%;"></p></span>Lewis Kinardhttp://www.blogger.com/profile/17175506995265962354noreply@blogger.com0tag:blogger.com,1999:blog-1376852297850165449.post-67980390312371431372011-03-03T17:37:00.004-06:002011-03-16T22:07:13.043-05:00Who Owns the Copyright in Work Created While Employed?<a href="http://2.bp.blogspot.com/-0blQQNSNVs8/TXAC_4is8hI/AAAAAAAAARo/8b0nras_Y5E/s1600/monitor.JPG"><img style="MARGIN: 0px 0px 10px 10px; WIDTH: 320px; FLOAT: right; HEIGHT: 228px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5579963234844996114" border="0" alt="" src="http://2.bp.blogspot.com/-0blQQNSNVs8/TXAC_4is8hI/AAAAAAAAARo/8b0nras_Y5E/s320/monitor.JPG" /></a><br /><div><u>Overview</u><br />The Copyright Act of 1976 (<a href="http://www.law.cornell.edu/copyright/copyright.table.html">17 USC Section 101-810</a>) (<strong>1</strong>) gives ownership rights of music, text, artwork, computer code and other such "original works of authorship" (<a href="http://www.law.cornell.edu/copyright/copyright.act.chapt1a.html#17usc102">17 USC Section 102(a)</a>) to their authors by default with a few exceptions. (<strong>2)</strong> No registration by the original author is necessary. One of the exceptions is the so-called “works for hire” exception (more accurately called “works made for hire”) defined in <a href="http://www.law.cornell.edu/copyright/copyright.act.chapt1a.html#17usc101">17 USC Section 101</a>), that gives at least co-ownership of the authored work to the author and the one who paid to have it created. </div><br />You can see how someone who hires a sculptor, for example, to create a specific work of art would expect to have some ownership in the creation he paid for. In the technology sector, this issue comes up most often with respect to software code written by employees (<strong>3</strong>), contract employees and others who perform work that is accumulated into the final software product. Copyright protection extends to copyrightable expression within a computer program, but not to ideas, program logic, algorithms, systems, methods, concepts or layouts (<a href="http://www.law.cornell.edu/copyright/copyright.act.chapt1a.html#17usc102">17 USC Section 102(b)</a>) which typically fall under the U.S. patent law (see 35 USC Sections <a href="http://www.law.cornell.edu/uscode/html/uscode35/usc_sec_35_00000100----000-.html">100</a> and <a href="http://www.law.cornell.edu/uscode/html/uscode35/usc_sec_35_00000101----000-.html">101</a> , e.g.).<br /><br />Ownership of a copyright can generally be transferred only with "an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent" or by operation of law. (<a href="http://codes.lp.findlaw.com/uscode/17/2/204">17 USC Section 204(a)</a>). While many employers have new hires sign an agreement at the start that clearly states the employer will own everything the employee creates while working there, some still do not take this simple, pro-active step. And non-traditional workers pose special challenges.<br /><br />On top of those, add the challenges that come when the employer sells the work product of the author. Government procurement regulations often require vendors to release some or all of their rights to any intellectual property (“IP”) included in the deliverables. (See standard Federal Acquisition Regulation clauses <a href="https://www.acquisition.gov/far/current/html/52_227.html">52.227-14 through 52-227-20</a>, for example or <a href="http://www.tpsgc-pwgsc.gc.ca/app-acq/arp-pns/hist/ap49-pn49-eng.html">Policy Notification 49</a> in Canada, which many state, provincial and local governments pattern their own rules after.) Commercial purchase agreements generally have similar provisions.<br /><br />And finally, there is more often these days than in the past a challenge that comes when the employee modifies or incorporates work authored by others who may not be employed by the same employer. The ease with which a programmer can find and incorporate “open source” software components exposes the employer to potential claims of people the employer never intended to involve in a project. The employee is also potentially at risk.<br /><br /><u>Preventing Disputes</u><br />Employers and employees can prevent a lot of problems by clarifying their rights in writing at the beginning. Here are some things to keep in mind when creating an agreement that covers copyrights (and most other intellectual property rights) between employer and employee or to define contract services.<br /><br />1. Who owns what?<br />2. How will the employer “pay” for the author’s rights?<br />3. What is covered by the agreement?<br />4. What duties does each party owe to the other?<br />5. What about work product the employer sells to others?<br />6. How will each address exceptions?<br />7. When does the IP rights agreement start and end?<br />8. How will disputes be handled?<br />9. What happens if the parties can’t resolve a dispute themselves?<br /><br />In this post, I will cover the first four. The rest will be in a later post.<br /><br /><u>1. Who Owns What?<br /></u>Most of the time, the parties come together with rights in work product created before they associate. Employers need to know what the employee already owns and the employee needs to list in detail the pre-existing work before work begins so there is no question about the date of creation or the applicability of the employment agreement’s terms. It is important that the employee list any liens or other claims against any of her work and to show that those claims will not apply to work created for the employer.<br /><br />Describe the parties, indicating who is employer and who is employee, and that the future works subject to the agreement will be made within the scope of the employee's duties. Be sure to address the potential claims of third parties to any of the pre-existing work, especially if any of them work or have worked for the hiring employer or if the new employee may have potential claims by a previous employer to any work she claims. Then describe what rights the employee will surrender to the employer and the exact date and time, including time zone, the employer’s rights will begin. Be specific. Each of these can be a source of disagreement later.<br /><br /><u>2. How will the employer “pay” for the author’s rights?<br /></u>An essential element of a valid contract is the “consideration.” One party must give something of value to the other for the second party’s deliverable. Consideration does not have to be in cash, however. Depending on the circumstances, consideration may be the extension of a job offer, or giving up a valuable right or an obligation to do or refrain from doing something in the near future, for example. State clearly what the consideration is and that the parties agree it is sufficient consideration for the future IP rights surrendered by the employee as well as the employer's right to re-sell the work authored by the employee without further compensation.<br /><br /><u>3. What is covered by the agreement?<br /></u>This seems intuitive until you dig into the possible scenarios. What about work done after hours though on the employer’s equipment? Or at home after hours on the employee’s own equipment? Can the employee perform the same type of work for others? Can she add to pre-existing works that do not relate to the employer’s business? Address as many scenarios as you can but also include guidelines for the parties to raise and address unforeseen situations in a pro-active manner. It may be wise to include a provision where everything is deemed surrendered unless excepted by separate written agreement prior to creation.<br /><br /><u>4. What duties does each party owe to the other?<br /></u>Initially, there are duties of disclosure. Is the employee bound by any nondisclosure or non-competion agreement? Does the employee know of any potential claims by others to his work? Does the employee hold rights in IP used or also owned by potential competitors?<br /><br />Next, there are duties during the employment or contract term. Has the employee used the work of others in his work? If so, there should be an itemized list of the source, all applicable license terms, where you can get a copy of the license and how the license was acquired. The employee should be required to get permission before incorporating any works of others and should be on notice of potential consequences for violating that clause.<br /><br /><br />In the <a href="http://lewiskinard.blogspot.com/2011/03/who-owns-copyright-in-work-created.html">second post on this topic</a>, I will cover the remaining five points.<br />______________________________________<br />1 Though this discussion focuses on the Copyright Act of 1976 in the United States, as amended through 2009, the guidelines are generally applicable to other intellectual property issues such as patents, trademarks, and service marks. Those types of IP rights have other concerns, however, that are not addressed here.<br /><br />2 It is important to note that this post discusses ONLY the United States Copyright Act and works created solely within the United States. Other laws may apply to works from other countries and the U.S. has signed treaties and international commitments related to the protection of intellectual property rights around the world.<br /><br />3 The question of when a person is an “employee” for the purposes of the “works for hire” exception will be the subject of a later post, since it is complicated and deserves discussion.Lewis Kinardhttp://www.blogger.com/profile/17175506995265962354noreply@blogger.com0tag:blogger.com,1999:blog-1376852297850165449.post-90247434341722535842010-10-25T21:45:00.009-05:002010-10-29T15:53:55.460-05:00A New Pledge - To Strengthen Pro Bono Legal Assistance (Part 4 of 4)<em>(October 24-30, 2010, is “Celebrate Pro Bono Week” in the United States and Canada and November 8-12, 2010, is “National Pro Bono Week” in the United Kingdom. This is the first of a 4-part series illustrating the need, the challenges and the priceless rewards for volunteer legal professionals. For more information about these events, go to this site for the U.S. and this one for the U.K.)</em><br /><br />In the first three parts of this series of posts commemorating Pro Bono Week 2010, I described the extent of the <a href="http://lewiskinard.blogspot.com/2010/10/new-pledge-to-strengthen-pro-bono-legal.html">unmet civil legal needs</a> (Part 1) of low-income families in the U.S., the need for <a href="http://lewiskinard.blogspot.com/2010/10/pledge-to-strengthen-pro-bono-legal.html">a </a><a href="http://lewiskinard.blogspot.com/2010/10/pledge-to-strengthen-pro-bono-legal.html">stronger public+private partnership</a> (Part 2) to address that need, and ways that <a href="http://lewiskinard.blogspot.com/2010/10/new-pledge-to-strengthen-pro-bono-legal_18.html">you and your peers can help</a> (Part 3).<br /><br />This final post lays out a type of wish list of actions that can help private lawyers help more often and includes a new video (at the end). But first, let me tell you about one case I will never forget.<br /><br /><em><strong>A Client Story</strong></em><br /><br />Some years ago, I took the application for legal aid from a couple of elderly women. They were the pastor and a decon of a small, poor, inner-city church located in a very low-income part of town and they had a bunch of documents with them. As I looked through their documents, I saw right away that the church had been sued by a carpet business to collect on its unpaid invoice and establish a lien on the church's only asset: its building and a half-acre of land.<br /><br /><a href="http://2.bp.blogspot.com/_vPcFJjVxULY/TMZQ95V-QJI/AAAAAAAAAQY/mndBR9EYv74/s1600/Church.jpg"><img style="MARGIN: 0px 10px 10px 0px; WIDTH: 166px; FLOAT: left; HEIGHT: 254px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5532198216566456466" border="0" alt="" src="http://2.bp.blogspot.com/_vPcFJjVxULY/TMZQ95V-QJI/AAAAAAAAAQY/mndBR9EYv74/s320/Church.jpg" /></a>The women looked at me and choked back tears. "We never ordered or received any carpet!" they said. It struck my inner-most sense of justice and I accepted their case on the spot.<br /><br />When I contacted the business owner, his response made me even more determined. "So what?" he replied when I pointed out that no carpet was delivered or installed. "I got a contract and they owe me for the whole amount."<br /><br />Well, he didn't have a contract; he had a quote that the minister never accepted. In a nutshell, a carefully drafted answer with counterclaims drove him into bankruptcy court and a quick and easy Adversary Proceeding not only declared his claims for a lien and debt invalid, but also that the church's fraud claims would not be discharged by his bankruptcy. And with that, it was over.<br /><br />I thought that the result was deeply satisfying. In this case, I helped prevent a gross injustice and hopefully convinced this businessman to never try that again. I wrote a nice letter to the minister to explain the result and that they had nothing to worry about.<br /><br />A few days later, the front desk called to tell me that the two women were in the lobby asking to see their lawyer. I was worried that they had another problem or didn't understand the outcome of their case. But when I got to the lobby, all I got were hugs, tears and thanks. "You saved our church!" they said. "You were the answer to our prayers." Those hugs and words were more valuable than any fee I had ever collected.<br /><br /><em><strong>What We Need Now</strong></em><br /><br />Growing the ranks of volunteers and increasing donations to help fund pro bono programs will go a long way. We also need changes in our ethics rules and pro bono programs.<br /><br /><strong>Rules.</strong><br />The American Bar Association added Rule 6.5, “Nonprofit and Court-Annexed Limited Legal Services Programs” to its Model Rules of Professional Conduct in 2002. That rule attempted for the first time to carve out a limited exception to some of the conflict of interest rules. The exception only applies when a lawyer:<br /><span style="color:#ffffff;">>>>>></span>a. participates in a qualified “limited assistance” event,<br /><span style="color:#ffffff;">>>>>></span>b. with no expectation of continuing representation in the matter presented,<br /><span style="color:#ffffff;">>>>>></span>c. does not personally know of a conflict of interest with the person helped at the event, and<br /><span style="color:#ffffff;">>>>>></span>d. does not personally know that another lawyer in his or her firm would have a conflict of interest with the person helped at the event.<br /><br />In the wake of recent major hurricanes in the U.S., scores of prospective volunteer lawyers have shied away from providing legal assistance to disaster victims in large part because they were concerned about inadvertently violating applicable ethics rules or causing an imputed conflict of interest that hurt their firms. Another cause for hesitation to prospective pro bono volunteers, especially in areas near a state border, is the worry about inadvertently violating another state’s “unauthorized practice of law” restrictions.<br /><br />Well-meaning lawyers need protection from these worries. Some pro bono programs have set up “anonymous” call centers and other systems for assisting people without the lawyer and client knowing the other’s names or the names of the parties involved, but some would argue that even that is not safe, as enough facts can often be inferred from the conversation to trigger a potential conflict of interest or disqualification.<br /><br />The rules should clearly exempt from discipline any lawyer who:<br /> Provides:<br /><span style="color:#ffffff;">>>>>></span>i. free, short-term legal assistance<br /><span style="color:#ffffff;">>>>>></span>ii. in a setting where complete conflict of interest checking is not feasible,<br /><span style="color:#ffffff;">>>>>></span>iii. has no plan to ever receive compensation for the work,<br /><span style="color:#ffffff;">>>>>></span>iv. does not allow confidential information from the assistance to be accessed by anyone at his or her firm, and<br /><span style="color:#ffffff;">>>>>></span>v. has no personal knowledge that he or anyone else in his firm would have a conflict of interest with the client being helped at the event.<br /> Provides only general assessment and guidance in urgent situations regarding matters involving state laws where he is not licensed, with appropriate admonitions that the client seek other guidance from a lawyer duly licensed in the other state.<br /> Provides limited, “unbundled” assistance to self-represented litigants, such as coaching before a hearing, reviewing proposed orders, or explaining court rules.<br /> Provides free limited answers to general legal questions in online forums (as long as he includes appropriate disclaimers).<br /><br />Rules regulating the legal profession in each state should also clarify what information court personnel and other nonlawyers can provide, such as general procedural guidance, preprinted legal information and how to obtain legal assistance or report lawyer misfeasance to the governing body.<br /><br />The ABA Ethics 20/20 commission is now reviewing the 2002 Model Rules and issues unaddressed in them. Hopefully, they will come up with more protections and the states will adopt them quickly.<br /><br /><strong>Pro Bono Programs.</strong> <a href="http://2.bp.blogspot.com/_vPcFJjVxULY/TMZRfk1_bCI/AAAAAAAAAQg/fZehyUG0Ado/s1600/Volunteer.jpg"><img style="MARGIN: 0px 0px 10px 10px; WIDTH: 200px; FLOAT: right; HEIGHT: 162px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5532198795179158562" border="0" alt="" src="http://2.bp.blogspot.com/_vPcFJjVxULY/TMZRfk1_bCI/AAAAAAAAAQg/fZehyUG0Ado/s200/Volunteer.jpg" /></a><br />Lawyers today are more culturally diverse in many ways than ever before. And “culture” means a lot of things in addition to race, religion, national origin, gender and sexual orientation:<br /><br /><blockquote>Urban, suburban or rural<br />Large, medium, small or solo firm<br />Specialist or generalist<br />High, medium, low or non-existent technological skills<br />Heavy, light or zero bar association involvement </blockquote>These differences make our profession richer and stronger, but give Pro bono program directors challenges:<br />-> As more lawyers are concentrated in urban areas, fewer are available to provide significant pro bono assistance in rural areas.<br />-> Some lawyers only communicate by mobile phone and text messages, while others prefer email, faxes or messages left with their secretaries.<br />-> Younger lawyers tend to work easily with web-based systems, while more-experienced lawyers prefer to deliver aid in person.<br />-> Lawyers move from firm to firm more frequently, often forgetting to let their pro bono coordinators know of the change.<br />-> Clients with pre-paid mobile phones can change phone numbers faster than their addresses, yet busy volunteers do not have a lot of time to chase after them to complete a matter.<br /><br />These and other challenges require program updates in many places to keep attracting new volunteers while retaining valued long-timers. Some pro bono program directors will need to use more online and electronic tools to help busy lawyers volunteer, deliver legal assistance, obtain mentoring support, and report on their results, even as some long-time volunteers still require a phone call to sell them on a new pro bono case. Even more, these tools can be used to connect rural clients with urban lawyers in many types of cases.<br /><br />Others will have to expand “assisted pro se” projects in ways that require fewer volunteers or incorporate nonlawyers who can deliver legal information and pre-printed guidance. [1]<br /><br /><strong><em>"Do It Anyway"</em></strong><br /><br />But do not let these gaps dissuade you from getting involved. Pro bono programs have existed successfully for many decades and their dedicated staff can accommodate almost every volunteer’s needs who regularly takes cases for them.<br /><br />It is Celebrate Pro Bono Week. Take an extra case as part of the festivities!<br /><br /><object width="480" height="385"><param name="movie" value="http://www.youtube.com/v/a2r8P2gmIKM?fs=1&hl=en_US"></param><param name="allowFullScreen" value="true"></param><param name="allowscriptaccess" value="always"></param><embed src="http://www.youtube.com/v/a2r8P2gmIKM?fs=1&hl=en_US" type="application/x-shockwave-flash" allowscriptaccess="always" allowfullscreen="true" width="480" height="385"></embed></object><br /><br /><img style="TEXT-ALIGN: center; MARGIN: 0px auto 10px; WIDTH: 320px; DISPLAY: block; HEIGHT: 101px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5522506656609589170" border="0" alt="" src="http://2.bp.blogspot.com/_vPcFJjVxULY/TKPii3Dx17I/AAAAAAAAAPI/NX7NVV-3vg8/s320/CelebrateProBono_logo.png" /><br /><br /><img style="TEXT-ALIGN: center; MARGIN: 0px auto 10px; WIDTH: 242px; DISPLAY: block; HEIGHT: 92px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5522507353122904514" border="0" alt="" src="http://2.bp.blogspot.com/_vPcFJjVxULY/TKPjLZxfmcI/AAAAAAAAAPY/5rvs8LfvJEk/s320/probonologo_cmyk.jpg" /><br /><br /><br /><p>NOTES:</p><p>[1] The Texas <a href="http://www.courts.state.tx.us/oca/">Office of Courts Administration </a>recently produced informative guidelines [<a href="http://www.courts.state.tx.us/pubs/LegalInformationVSLegalAdviceGuidelines.pdf">pdf here</a>] for court personnel so they can know where the line is between "legal information" and "legal advice." It is a useful model and has apparently been well received by court personnel across the state.</p>Lewis Kinardhttp://www.blogger.com/profile/17175506995265962354noreply@blogger.com7tag:blogger.com,1999:blog-1376852297850165449.post-79456469783302761352010-10-18T04:48:00.005-05:002010-10-20T13:37:07.969-05:00A New Pledge - To Strengthen Pro Bono Legal Assistance (Part 3 of 4)<em>(October 24-30, 2010, is “Celebrate Pro Bono Week” in the United States and Canada and November 8-12, 2010, is “National Pro Bono Week” in the United Kingdom. This is the first of a 4-part series illustrating the need, the challenges and the priceless rewards for volunteer legal professionals. For more information about these events, go to this site for the U.S. and this one for the U.K.)</em><br /><br /><a href="http://2.bp.blogspot.com/_vPcFJjVxULY/TLM1hr5SYYI/AAAAAAAAAQI/45eUgU4SgV8/s1600/Pro+Bono+Works.jpg"><img style="MARGIN: 0px 10px 10px 0px; WIDTH: 320px; FLOAT: left; HEIGHT: 214px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5526820020548690306" border="0" alt="" src="http://2.bp.blogspot.com/_vPcFJjVxULY/TLM1hr5SYYI/AAAAAAAAAQI/45eUgU4SgV8/s320/Pro+Bono+Works.jpg" /></a><br />In my earlier posts, I described the extent of the <a href="http://lewiskinard.blogspot.com/2010/10/new-pledge-to-strengthen-pro-bono-legal.html">unmet civil legal needs</a> of low-income families in the U.S. and the need for <a href="http://lewiskinard.blogspot.com/2010/10/pledge-to-strengthen-pro-bono-legal.html">a stronger public+private partnership</a> to address that need. This one focuses on action.<br /><br />If you are a lawyer, paralegal, law student, court reporter, court clerk or legal secretary, ask yourself and your peers: is our firm/office/department doing all it can to help relieve the distress our neighbors feel when they cannot afford needed legal help? Some of you are. Thank you. For the rest, take the time to connect with your local pro bono program or look at their statewide website for opportunities to make a real difference. Use your special skills in new ways to help those unable to adequately help themselves through often simple legal problems.<br /><br /><strong><em>Many paths; one mountain peak</em></strong><br /><br />Of course, depending on your present occupation, your volunteer opportunities may seem limited.<br /><br /> Lawyers in private firms are a rich resource for pro bono programs. Whether sending younger associates to volunteer and build practical legal skills faster or actually co-counseling with staff legal services lawyers to bolster and mentor, firms traditionally have carried their pro bono service banners proudly. Lawyers in small and solo practice tend to have difficulty giving their time away with no one else to keep the revenue stream flowing, but still have traditionally supported pro bono projects either financially or through limited volunteer services. With more cases to place with volunteers than they have on their rosters, Pro bono coordinators sometimes provide CLE courses in partial compensation and always show their thanks openly.<br /><br /> Corporate and government legal department lawyers have more restrictions on how they can participate, yet they continue to find new ways to help those in need and support legal aid as their “charity of choice.” Some volunteer in “advice-only” events, on speakers’ panels, with fundraising and to recruit other volunteers.<br /><br /> Paralegals and unlicensed lawyers can be important and valuable volunteers, as well. Many para-professionals have the skills, experience and special knowledge of areas of the law that affect pro bono clients. These “subject matter experts” offer support to lawyers who may be venturing into a new area of the law or taking on several cases at once.<br /><br /> Court reporters, too, are needed in pro bono programs and staff legal services. Discovery is expensive, but often unavoidable for the responding party. While some large law firms may donate the costs of discovery incurred in their cases, many small firms and solo practitioners cannot. Donated court reporter time helps keep the legal playing field level and the volunteer lawyer in the game.<br /><br /> Other volunteers are key to successful pro bono programs in the areas of fundraising, communications, office management, volunteer recruiting and recognition, technology, and more. Whether earning community service hours for school or exploring the legal profession as a potential vocation, high school, college and law school students can easily find ways to help keep the program moving smoothly along.<br /><a href="http://3.bp.blogspot.com/_vPcFJjVxULY/TLM10EutGaI/AAAAAAAAAQQ/HBxt2XQwvx0/s1600/Corp+Atty.jpg"><img style="MARGIN: 0px 0px 10px 10px; WIDTH: 242px; FLOAT: right; HEIGHT: 181px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5526820336452835746" border="0" alt="" src="http://3.bp.blogspot.com/_vPcFJjVxULY/TLM10EutGaI/AAAAAAAAAQQ/HBxt2XQwvx0/s200/Corp+Atty.jpg" /></a><br />Rest assured, there are plenty of opportunities for everyone. Lawyers and other legal professionals in private practice tend to provide more pro bono services than their counterparts in corporate and government legal departments. <a href="http://www.probono.net/dc/about/">Government lawyers</a> <strong><em>can</em></strong> provide pro bono services, despite some misconceptions on that. Corporate counsel can find opportunities tailored to their circumstances and skills at web sites such as this one by <a href="http://www.corporateprobono.org/organizations/index.cfm">the ACC</a> and this one at the <a href="http://www2.guidestar.org/rxa/news/articles/2003/pro-bono-and-more-on-line-legal-resources-for-nonprofits.aspx">Alliance for Justice</a>,<br /><br /><strong><em>Many ways to join the effort</em></strong><br /><br />Here are some ideas on how to make a difference that are specific to the legal profession:<br /><br /> <strong>Helping People.</strong> As any experienced volunteer lawyer will tell you, there is nothing in the for-profit side of our profession that comes close to the satisfaction we get from knowing we have helped someone resolve a personal legal matter. Very few pro bono cases are merely financial disputes, because legal aid is designed to address cases that are not lucrative for the private bar. These are compelling situations often filled with emotions such as fear, anger and depression. Even when you do not win 100% of the client’s goals, they are normally appreciative of the fact that someone helped them speak up, fight back or stand tall. (The smiles and hugs are hard to beat, too!)<br /><br /> <strong>Helping Groups.</strong> While some will debate whether or not free legal assistance to their local $10+ million symphony should qualify as “pro bono” work, the truth is that nonprofits need legal assistance, too. There are thousands of small nonprofit organizations in the U.S. Many of them were created by or primarily serve families eligible for free civil legal services, so their budgets are very thin. Helping them continue to help others without spending scarce funds on legal fees is one way to help many people in each legal matter. You may not meet all of your “clients,” but those you do work with are sure to let you know how grateful they are for your service.<br /><br /> <strong>Helping Pro Bono Programs.</strong> As with most nonprofit organizations, pro bono programs are under-funded, under-staffed and over-whelmed by demand for their assistance. Financial support is always needed, but so is emotional support and public recognition for volunteers and pro bono program staff. Those “in transition” can learn new skills, network with peers and keep their sanity by getting involved while they have the extra time to contribute. Anyone can send cookies, drop off supplies, commend staff in a blog or simply stop by to ask the program coordinator what is needed.<br /><br /><strong><em>A New Pledge<br /></em></strong><br />So let’s make a new pledge together:<br /><br /><blockquote><strong>“I pledge my support, as a legal professional,<br />to my fellow citizens and less-fortunate neighbors.<br />And true to the people, for whom I now stand,<br />I’ll provide, and support, pro bono assistance<br />To help achieve Equal Access to Justice for All!” </strong></blockquote>(rest assured, no one will be <a href="http://www.law.com/jsp/article.jsp?id=1202473224805">jailed for NOT</a> reciting it!)<br /><br /><br /><img style="TEXT-ALIGN: center; MARGIN: 0px auto 10px; WIDTH: 320px; DISPLAY: block; HEIGHT: 101px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5522506656609589170" border="0" alt="" src="http://2.bp.blogspot.com/_vPcFJjVxULY/TKPii3Dx17I/AAAAAAAAAPI/NX7NVV-3vg8/s320/CelebrateProBono_logo.png" /><br /><br /><img style="TEXT-ALIGN: center; MARGIN: 0px auto 10px; WIDTH: 242px; DISPLAY: block; HEIGHT: 92px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5522507353122904514" border="0" alt="" src="http://2.bp.blogspot.com/_vPcFJjVxULY/TKPjLZxfmcI/AAAAAAAAAPY/5rvs8LfvJEk/s320/probonologo_cmyk.jpg" />Lewis Kinardhttp://www.blogger.com/profile/17175506995265962354noreply@blogger.com0tag:blogger.com,1999:blog-1376852297850165449.post-60584057594633308952010-10-11T05:00:00.004-05:002010-10-11T10:48:08.266-05:00A New Pledge – To Strengthen Pro Bono Legal Assistance (Part 2 of 4)<em>(October 24-30, 2010, is “Celebrate Pro Bono Week” in the United States and Canada and November 8-12, 2010 is “National Pro Bono Week” in the United Kingdom. This is the first of a 4-part series illustrating the need, the challenges and the priceless rewards for volunteer legal professionals. For more information about these events, go to <a href="http://www.probono.net/celebrateprobono/">this site</a> for the U.S. and <a href="http://www.probonouk.net/index.php?id=pbw_top&calMonth=11&calYear=2010">this one</a> for the U.K.) </em><br /><br />In <a href="http://lewiskinard.blogspot.com/2010/10/new-pledge-to-strengthen-pro-bono-legal.html">my earlier post</a>, I described the size of the problem in the U.S., where, for every person who receives federally-subsidized free legal assistance, at least one more eligible applicant is turned away. (See “Documenting the Justice Gap in America” 2009 update, page 12 (<a href="http://www.lsc.gov/pdfs/documenting_the_justice_gap_in_america_2009.pdf">PDF</a>).) Other countries have similar unmet needs based on their levels of funding for civil legal assistance. Government funded programs and non-governmental organizations cannot solve the problem alone. They need your help.<br /><br /><strong><em>Poverty is An Equal Opportunity Status</em></strong><br /><br />The unmet need for civil legal assistance to low-income families in our communities is growing. John G. Levi, Chairman of the <a href="http://www.lsc.gov/">Legal Services Corporation</a>’s Board of Directors, estimated that <a href="http://3.bp.blogspot.com/_vPcFJjVxULY/TKPrhOW5o-I/AAAAAAAAAPg/WW46R5dbxDE/s1600/00427611.jpg"><img style="MARGIN: 0px 10px 10px 0px; WIDTH: 134px; FLOAT: left; HEIGHT: 200px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5522516524108719074" border="0" alt="" src="http://3.bp.blogspot.com/_vPcFJjVxULY/TKPrhOW5o-I/AAAAAAAAAPg/WW46R5dbxDE/s200/00427611.jpg" /></a>nearly <a href="http://www.lsc.gov/press/pressrelease_detail_2010_T261_R27.php">57 million Americans now qualify</a> for free civil legal assistance based on their very-low-income status. And that is just based on 2009 Census data. When the official 2010 results are in, those ranks will no doubt grow significantly.<br /><br />The numbers are worse than that: although civil legal aid programs report assistance to many people each funding cycle, many of those clients did not receive all of the help they needed due to the lack of staff and volunteers. Go to any civil legal aid office and ask about the applications they have to turn down due to insufficient staff. Without exception, each will have its stories of eligible applicants with compelling needs that they sent away with either no help or insufficient help to resolve the matter.<br /><br />The issue is nonpartisan, nondenominational and gender and race neutral:<br /><blockquote><p>• Federal funding for free civil legal services began as part of the “<a href="http://www.nlada.org/About/About_HistoryCivil#oeo">Office of Economic Opportunity</a>,” an agency created by the Economic Opportunity Act of 1964. The LSC has a bi-partisan Board of Directors (<a href="http://www.nlada.org/About/About_HistoryCivil#lsc">no more than 6</a> of its 11 Directors can be from the same political party) and bi-partisan support in Congress.</p><p>• Most major religions encourage help to the poor. (See these commentaries: <a href="http://thechristianworldview.com/tcwblog/archives/741">Christian</a>, <a href="http://judaism.about.com/library/3_askrabbi_o/bl_simmons_poverty.htm">Jewish</a>, <a href="http://www.alrisala.org/Articles/mailing_list/charity.html">Muslim</a>, and <a href="http://www.hvk.org/articles/0807/126.html">Hindu</a>.) Religious organizations have voiced their support for legal aid to the poor around the globe. (See, for example, <a href="http://www.ucanews.com/2010/03/30/church-supports-legal-aid-to-poor-people/">this story</a> from Jakarta.) </p><p>• The loss of over 8 million jobs in the past few years means that many families are now living at or near the poverty line who used to be well above it. Many more are very close. </p></blockquote>At a time when most politicians are calling for budget cuts and many states face their own financial challenges, there is little hope that federal and state funding for civil legal assistance will ever rise to the point where all eligible families and senior citizens will receive help with wills, child custody, home repair fraud, family violence protection, or appealing wrongful denials of public assistance benefits.<br /><br />The Founding Fathers wrote the current <a href="http://www.usconstitution.net/const.html#Preamble">U.S. Constitution</a> “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” They understood that each of these was essential to the new nation’s long-term success. They also understood what can happen when the citizens stop believing that their government’s institutions deliver justice fairly.<br /><br /><strong><em>Toward a Better Public+Private Solution</em></strong><br /><br />Government funded programs cannot meet the need at present funding levels and more funding is unlikely in the current economic and political climate. While poverty and access to justice are issues for all Americans, those of us in the legal profession have the skills, interests and knowledge necessary to provide immediate help to our most vulnerable citizens.<br /><br />We need more private individuals, firms and organizations to join the effort. Wherever you find pro bono programs, there are more eligible applicants than there are willing volunteers. Pro bono program directors have very limited staff and funds, but seemingly unlimited pleas for legal assistance. Applicants in rural areas face additional challenges because most lawyers are located in urban areas that can be hours away and those in urban areas overwhelm the service providers every month.<br /><br />Legal professionals are in a unique position to help fill the gap. Justice Oliver Wendell Holmes once said that “of all secular professions, [the law] has the highest standards.” [1] Roscoe Pound, Dean of Harvard Law School from 1916-1936, observed that professionalism in the law “refers to a group…pursuing a learned art as a common calling in the spirit of public service—no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of public service is the primary purpose.” [2] More recently, Justice Sandra Day O’Connor, after quoting Dean Pound, went on to say that “lawyers have in their possession the keys to justice under the rule of law—the keys that open the courtroom door. Those keys…are held in trust for all those who would seek justice, rich and poor alike.” [3]<br /><br />The challenge is still there today. How will you rise to meet it?<br /><br />There are efforts underway to address the needs. The American Bar Association’s <a href="http://www.abanet.org/yld/publicservice/">Young Lawyers Division</a> and the Young Lawyers Associations in <a href="http://cc.calbar.ca.gov/CommitteesCommissions/Special/CYLA/Programs.aspx">California</a>, <a href="http://www.flayld.org/getinvolved/probono.php">Florida</a>, <a href="http://www.probono.net/ny/NYSBA_oppsguide/">New York</a>, <a href="http://4.bp.blogspot.com/_vPcFJjVxULY/TKPsHsLoKKI/AAAAAAAAAPo/exSRVhcivrY/s1600/j0443497.jpg"><img style="MARGIN: 0px 0px 10px 10px; WIDTH: 200px; FLOAT: right; HEIGHT: 133px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5522517184949528738" border="0" alt="" src="http://4.bp.blogspot.com/_vPcFJjVxULY/TKPsHsLoKKI/AAAAAAAAAPo/exSRVhcivrY/s200/j0443497.jpg" /></a><a href="http://www.msba.org/sec_comm/sections/yls/what.htm">Maryland</a> and other states focus on unmet legal needs in their communities. The <a href="http://www.tyla.org/">Texas Young Lawyers Association</a> specifically has focused on connecting corporate counsel to pro bono opportunities with its new "<a href="http://www.tyla.org/news/enews1/september-2010/editors-column/">Partnering for Pro Bono</a>" program. Some states have established web sites to match volunteers to opportunities of interest without them ever leaving their keyboards: <a href="http://www.texaslawyershelp.org/">Texas</a>, <a href="http://www.coadvocatesforum.org/volunteer/">Colorado</a>, <a href="http://www.probono.net/ny/">New York</a>, and <a href="http://www.projusticemn.org/oppsguide/">Minnesota</a> are a few examples.<br /><br />What will you do to support your local pro bono program or legal aid organization? Are you already active in your local program? If not, you can start with these links to some of the legal aid and pro bono organizations:<br /><strong><blockquote><p><strong>United States:</strong><br />American Bar Association’s <a href="http://www.abanet.org/legalservices/probono/volunteer.html">Center for Pro<br />Bono</a><br /><a href="http://www.probono.net/oppsguide/">ProBono.net</a><br />Legal Services Corporation’s <a href="http://www.lsc.gov/map/index.php">Map<br />of LSC-funded Programs</a> </p><p>Texas "<a href="http://www.texascbar.org/attorneys/why.php">C-BAR</a>" (assistance to qualified nonprofits)<br /><br /><strong>Canada:</strong><br /><a href="http://www.cba.org/CBA/groups/probono/">Canadian Bar Association</a><br />List of links to <a href="http://canadaonline.about.com/od/legalaid/Legal_Aid_in_Canada.htm">Legal<br />Aid Programs in Canada</a><br /><br /><strong>United Kingdom:</strong><br /><a href="http://www.probonouk.net/index.php?id=assist_pro">ProBonoUK.net</a><br /><a href="http://lawworks.org.uk/?id=478">LawWorks</a><br /><br /><strong>Others:<br /></strong><a href="http://www.nationalprobono.org.au/page.asp?from=8&id=211">National Pro<br />Bono Resource Centre</a> (Australia)<br /><a href="http://www.internationalprobono.com/links/item.566-Pro_Bono_Organisations">InternationalProBono.com </a><br /></p></blockquote></strong>(<em>to be continued</em>...)<br /><br />NOTES:<br />[1] Suffolk Bar Assn. Dinner, Feb. 5, 1885, Speeches (1913), reprinted in Lerner, Max, <a href="http://books.google.com/books?id=niCRQN07Zn8C&lpg=PP1&ots=SEY8szyjjP&dq=the%20mind%20and%20faith%20of%20justice%20holmes&pg=PA29#v=onepage&q&f=false"><em>The Mind and Faith of Justice Holmes</em> 29 </a>(1954).<br /><br />[2] Pound, Roscoe, <em>The Lawyer from Antiquity to Modern Times</em>, 5 (1954).<br /><br />[3] Remarks at the dedication of Anheuser-Busch Hall, Washington University School of Law, St. Louis, Missouri, on Sept. 26, 1997, as printed in <a href="http://lawreview.wustl.edu/inprint/76-1/761-02.html">76 Wash. U. L.Q. 5, 12</a> (1998).<br /><br /><img style="TEXT-ALIGN: center; MARGIN: 0px auto 10px; WIDTH: 320px; DISPLAY: block; HEIGHT: 101px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5522506656609589170" border="0" alt="" src="http://2.bp.blogspot.com/_vPcFJjVxULY/TKPii3Dx17I/AAAAAAAAAPI/NX7NVV-3vg8/s320/CelebrateProBono_logo.png" /><br /><br /><br /><img style="TEXT-ALIGN: center; MARGIN: 0px auto 10px; WIDTH: 242px; DISPLAY: block; HEIGHT: 92px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5522507353122904514" border="0" alt="" src="http://2.bp.blogspot.com/_vPcFJjVxULY/TKPjLZxfmcI/AAAAAAAAAPY/5rvs8LfvJEk/s320/probonologo_cmyk.jpg" />Lewis Kinardhttp://www.blogger.com/profile/17175506995265962354noreply@blogger.com0tag:blogger.com,1999:blog-1376852297850165449.post-77773288917265869992010-10-03T05:30:00.002-05:002010-10-13T09:28:50.912-05:00A New Pledge – To Strengthen Pro Bono Legal Assistance (Part 1 of 4)<em>(October 24-30, 2010, is “Celebrate Pro Bono Week” in the United States and Canada and November 8-12, 2010 is “National Pro Bono Week” in the United Kingdom. This is the first of a 4-part series illustrating the need, the challenges and the priceless rewards for volunteer legal professionals. For more information about these events, go to <a href="http://www.probono.net/celebrateprobono/">this site</a> for the U.S. and <a href="http://www.probonouk.net/index.php?id=pbw_top&calMonth=11&calYear=2010">this one</a> for the U.K.) </em><br /><br /><em><strong>“…with Liberty and Justice For All.”</strong></em><br /><br /><a href="http://4.bp.blogspot.com/_vPcFJjVxULY/TKPeq6T_JdI/AAAAAAAAAO4/6mBVpJVELYc/s1600/00400312.jpg"><img style="MARGIN: 0px 10px 10px 0px; WIDTH: 264px; FLOAT: left; HEIGHT: 163px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5522502396875318738" border="0" alt="" src="http://4.bp.blogspot.com/_vPcFJjVxULY/TKPeq6T_JdI/AAAAAAAAAO4/6mBVpJVELYc/s200/00400312.jpg" /></a>School children recite the Pledge of Allegiance in the United States nearly every school day:<br /><br />“I pledge allegiance, to the Flag,<br />of the United States of America.<br />And to the Republic, for which it stands.<br />One nation, under God, indivisible,<br />with liberty and justice for all.”<br /><br />To help celebrate National Pro Bono weeks in various countries, I have written a brief series of posts proposing a similar kind of pledge for legal professionals.<br /><br /><a href="http://www.answers.com/topic/pro-bono">Pro bono</a> legal assistance has a long, rich history in nearly all “common law” legal systems. Lawyers have likely been providing free legal assistance to those who cannot afford to hire them since the legal profession began. The concept of providing free civil legal assistance to the poor in an organized fashion dates to the 1800s in the U.S. when legal aid societies were formed to meet the needs of their communities. Perhaps the best known type of pro bono legal assistance is court-appointed counsel for indigent defendants in criminal cases. Think of the American novel, <a href="http://books.google.com/books?id=EFn2xc6OHW8C&dq=to+kill+a+mockingbird&printsec=frontcover&source=bn&hl=en&ei=swSdTJG9PIK8lQet6uDfCw&sa=X&oi=book_result&ct=result&resnum=14&ved=0CFkQ6AEwDQ#v=onepage&q&f=false"><em>To Kill A Mockingbird</em></a>, for example.<br /><br />In the U.S., there is a constitutional <a href="http://www.nlada.org/About/About_HistoryDefender">right to counsel</a> for federal and most state criminal defendants when imprisonment is a potential punishment. (Most U.S. states also provide the right to representation when the State seeks to terminate their parental rights.) In the U.K. and Canada, people who are arrested may request an “Independent Solicitor” at the police station if they cannot afford their own representation.<br /><br />But indigent defendants in <em>civil</em> cases have no such right to court-appointed representation. Even though depriving a person of a home, job, or marital property or suffering fraud by an unscrupulous business can be as traumatic and injurious as jail for most families, we have not elevated those problems to the same level as deprivation of liberty or life.<br /><br /><div><div><div><blockquote>--When a relative wants to adopt an abused child who has been rescued by child protective services and placed in their care, the state will not pay for their legal assistance to complete the adoption.<br /><br />--When an entire family is about to be homeless because a landlord with poor rent records or a sinister motive is evicting them on short notice, the eviction court will not appoint an attorney to represent them.<br /><br />--When a judge intentionally or unintentionally refuses to correctly apply the law in a battered spouse’s divorce case, there is no right to counsel to avoid having our legal system used as yet one more weapon of abuse.<br /><br />--When a working family needs to restructure their debts in bankruptcy to get back on their feet after a major illness or income disruption, the bankruptcy process is generally too complicated for them without legal guidance and legal fees can make the process cost more than they can pay.<br /><br />--When an elderly widow needs title to her home cleared so she can obtain disaster relief funds or qualify for property tax reductions, no one at the tax office or property records office can represent her.<br /><br />--When a legally-blind home owner who lives entirely on his Social Security retirement check is tricked into signing papers that give his home to a contractor he thought was trying to help him rebuild after a storm, the litigation required to nullify that contract is typically too complicated to handle alone.<br /><br />--When a small neighborhood church for low-income families is sued by a carpet company for payment even though no carpet was ever delivered, no one can speak for the nonprofit group unless they can find a lawyer to defend them.</blockquote></div><div><strong><em>The Public Part of the Solution</em></strong></div><div><strong><em></em></strong></div><div><div></div><div>Most western nations attempt to address this gap with legal aid in one form or another. There are a number of organizations who provide free civil legal help using full time staff. The <a href="http://www.lsc.gov/">Legal Services Corporation </a>distributed over <a href="http://www.lsc.gov/about/FY2010app.php">$400 million USD</a> in 2009 to help fund over 136 programs across the U.S. and its territories, for example. Canadian governments contributed approximately <a href="http://www.statcan.gc.ca/pub/85f0015x/2009000/t001-eng.htm">$300 million CAD</a> (<a href="http://www.statcan.gc.ca/pub/85f0015x/2009000/t007-eng.htm">48% of the total funding</a> to civil and criminal legal aid programs). Standing government agencies and NGOs help millions of low-income people every year in many countries.<br /><br />Yet the need is still there. The Legal Services Corporation in the United States calculated that, in 2009, almost one million eligible applicants were turned away due to insufficient funding. (See “Documenting the Justice Gap in America” 2009 update, page 9 (<a href="http://www.lsc.gov/pdfs/documenting_the_justice_gap_in_america_2009.pdf">PDF</a>).) According to the LSC, in the U.S., “<em>for every client served by an LSC-funded program, at least one eligible person seeking help will be turned down.” (Id.</em>, at p. 12.)<br /><br />This is not a small gap in our quest for “equal justice under the law” (<em>Caldwell v. Texas</em>, <a href="http://supreme.justia.com/us/137/692/case.html">137 U.S. 692, 697</a> (1891).) that only occurs in isolated cases. This is not merely a problem that plagues poorer states, counties and towns. The holes in America’s pledge to “justice for all” are everywhere. This is a national issue of grave importance in every nation. It is time for a new pledge: <strong><em>A Pledge To Strengthen Pro Bono Legal Assistance</em></strong>.</div><br /><div></div><div>(<em>to be continued</em>...) <a href="http://lewiskinard.blogspot.com/2010/10/pledge-to-strengthen-pro-bono-legal.html">Go to Part 2</a><img style="TEXT-ALIGN: center; MARGIN: 0px auto 10px; WIDTH: 320px; DISPLAY: block; HEIGHT: 101px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5522506656609589170" border="0" alt="" src="http://2.bp.blogspot.com/_vPcFJjVxULY/TKPii3Dx17I/AAAAAAAAAPI/NX7NVV-3vg8/s320/CelebrateProBono_logo.png" /></div><img style="TEXT-ALIGN: center; MARGIN: 0px auto 10px; WIDTH: 242px; DISPLAY: block; HEIGHT: 92px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5522507353122904514" border="0" alt="" src="http://2.bp.blogspot.com/_vPcFJjVxULY/TKPjLZxfmcI/AAAAAAAAAPY/5rvs8LfvJEk/s320/probonologo_cmyk.jpg" /><br /><br /><br /><br /><div></div><br /><br /><br /><br /><div></div><br /><br /><br /><br /><div></div></div></div></div>Lewis Kinardhttp://www.blogger.com/profile/17175506995265962354noreply@blogger.com0tag:blogger.com,1999:blog-1376852297850165449.post-85805875026295498732010-09-30T05:08:00.003-05:002011-03-14T16:00:02.266-05:00Mandatory Breaktime for Nursing Mothers at WorkAs provisions of “Health Care Reform” take effect, employers and employees should pay<a href="http://4.bp.blogspot.com/_vPcFJjVxULY/TKPZSA9KbvI/AAAAAAAAAOo/-o1naA4ZV1Q/s1600/00401099.jpg"><img style="MARGIN: 0px 10px 10px 0px; WIDTH: 200px; FLOAT: right; HEIGHT: 134px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5522496471603769074" border="0" alt="" src="http://4.bp.blogspot.com/_vPcFJjVxULY/TKPZSA9KbvI/AAAAAAAAAOo/-o1naA4ZV1Q/s200/00401099.jpg" /></a> attention. The legislation has far-reaching impact and can catch some by surprise who think it only regulates health insurers. There were two separate bills passed that comprise the “Health Care Reform” package: the <a href="http://www.gpo.gov/fdsys/pkg/PLAW-111publ148/content-detail.html">Patient Protection and Affordable Care Act</a> (PPACA) (<a href="http://www.gpo.gov/fdsys/pkg/BILLS-111hr3590ENR/pdf/BILLS-111hr3590ENR.pdf">full text</a>) and the <a href="http://www.gpo.gov/fdsys/search/pagedetails.action?granuleId=&packageId=PLAW-111publ152">Health Care and Education Reform Act of 2010</a> (HCERA) (<a href="http://www.gpo.gov/fdsys/pkg/BILLS-111hr4872EH/pdf/BILLS-111hr4872EH.pdf">full text</a>). (See a very comprehensive <a href="http://en.wikipedia.org/wiki/Patient_Protection_and_Affordable_Care_Act">discussion of both</a> on Wikipedia and a convenient collection of links to <a href="http://www.gpo.gov/pdfs/news-media/press/10news12.pdf">Congressional </a><a href="http://www.gpo.gov/pdfs/news-media/press/10news12.pdf">Record items </a>related to both published by the GPO.)<br /><br />This post focuses on one of the important but often overlooked changes that affect the workplace: mandatory break time for nursing mothers. The Department of Labor recently published <a href="http://www.dol.gov/whd/regs/compliance/whdfs73.pdf">Fact Sheet #73</a> to provide general information on this new requirement. In a nutshell, the new law provides that:<br /><br /><a href="http://4.bp.blogspot.com/_vPcFJjVxULY/TKPacqeYyPI/AAAAAAAAAOw/DXQy_XWG1Xs/s1600/00321059.jpg"><img style="MARGIN: 0px 0px 10px 10px; WIDTH: 166px; FLOAT: left; HEIGHT: 232px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5522497754059294962" border="0" alt="" src="http://4.bp.blogspot.com/_vPcFJjVxULY/TKPacqeYyPI/AAAAAAAAAOw/DXQy_XWG1Xs/s200/00321059.jpg" /></a>1. It is secondary to state laws if those laws are more generous in this area<br /><p>2. It applies to “non-exempt” lactating employees only </p><p>3. “Reasonable break time” must be allowed for up to 1 year from child’s birth “each time” the employee needs to express breast milk </p><p>4. Employers must provide a place, “other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public” and functionally suitable </p><p>5. The breaks can be uncompensated, except to the extent the covered employee uses otherwise compensated break time, but only if the employee is completely relieved of duty during the break<br /></p>The provision went into effect immediately and applies to all employers. However, employers with less than 50 total employees, counting all locations together, who can show that compliance would impose an undue hardship, may be exempt. There are no detailed regulations or guidance on how to show undue hardship, but the statute’s definition of “undue hardship” is “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business.” (29 U.S.C. 207(r)(3); PL 111-148, March 23, 2010) There also are no guidelines yet as to whether an employer must apply for confirmation of exemption in advance or rely on its own evidence in defense of an enforcement action.<br /><br />The DOL expects to issue further guidance sometime in the future and hopefully will produce compliance assistance on this statute, per <a href="http://www.dol.gov/whd/regs/compliance/whdfs73.pdf">Fact Sheet 73</a>. Employers and employees will benefit from more clarification. For example, is the PPACA’s requirement of an uncompensated break whenever the nursing mother needs it “more generous” than a state’s requirement that the time run concurrently with a compensated break “if possible?”<br /><br />In the meantime, employers can look to resources and guidance from states that have had similar provisions for nursing mothers who return to work. The National Conference of State Legislatures has an updated survey of national and state <a href="http://www.ncsl.org/default.aspx?tabid=14389">Breastfeeding Laws</a>. Susan Heathfield wrote a blog post, “<a href="http://humanresources.about.com/od/policysamplesln/a/lactation_policy.htm">Lactation Accommodation Policy</a>,” that appears to pre-date the PPACA but provides guidance to employers drafting policies.<br /><br />California already had a lactation accommodation law and is a rich resource for those looking for tested strategies and ways to avoid potential issues. The University of California-San Diego’s <a href="http://adminrecords.ucsd.edu/ppm/docs/270-9.pdf">Lactation Accommodation policy</a> is available online, for example.<br /><br />Employers want their employees back at work happy, healthy and productive following maternity leave. Returning mothers who breastfeed need accommodation to be able to focus on work between pumping breaks. When these goals align, both win.Lewis Kinardhttp://www.blogger.com/profile/17175506995265962354noreply@blogger.com0tag:blogger.com,1999:blog-1376852297850165449.post-28503811906741983372010-07-03T07:32:00.005-05:002010-10-19T15:13:56.425-05:00What You Should Know When Selecting Software for Your Organization - Part FourAfter reading Susan Cramm's book, <em><a href="http://www.flickr.com/photos/harvardbusinessreview/4440318129/">8 Things We Hate About IT</a></em>, available through Harvard Business Press, I saw the need to supplement this series.* <br /><br /><em><span style="font-size:85%;">(* For prior posts in this series, click to go to </span></em><a href="http://lewiskinard.blogspot.com/2009/07/what-you-should-know-when-selecting.html"><em><span style="font-size:85%;">Part One</span></em></a><em><span style="font-size:85%;"> (preliminary phase), </span></em><a href="http://lewiskinard.blogspot.com/2009/09/what-you-should-know-when-selecting.html"><em><span style="font-size:85%;">Part Two</span></em></a><em><span style="font-size:85%;"> (product search phase), or </span></em><a href="http://lewiskinard.blogspot.com/2009/11/what-you-should-know-when-selecting.html"><em><span style="font-size:85%;">Part Three</span></em></a><span style="font-size:85%;"><em> (final selection phase).) </em><br /></span><br />Cramm, who is also author of the <em>Harvard Business Review</em> blog, "<a href="http://blogs.hbr.org/hbr/cramm/">Have IT Your Way</a>," clearly boils down her extensive experience into a simple handbook for the "IT-Challenged" manager. Here are a few points that are applicable to those in my series on purchasing software:<br /><br /><blockquote>1. Before running headlong into a purchase, (a) evaluate the idea from the perspective of your boss's boss, (b) check to see whether the capability already exists, (d) ensure that you are ready to devote the necessary resources and (e) verify that the idea is as good as you think. (Cramm, p. 81)<br /><br />2. Dramatically increase the odds of success for your initiative by (a) defining a clear purpose, (b) engage the "head, heart and hands" of those involved in your project, (c) integrate and streamline business processes, (d) leverage existing technology and (e) use a "fast cycle" approach that delivers at least some value every 3-6 months throughout the project. (Id., p. 89)<br /></blockquote><br />Rather than trying to digest the book for you here, I recommend you pick it up as soon as you can, especially if you are already planning a new IT project for your organization. It is concise yet you will use it as a reference book for a long time.<br /><br />If you are the CIO, then get a copy for your "less-than-IT-enabled" managers who impact IT decisions and budgeting. And do it yesterday!Lewis Kinardhttp://www.blogger.com/profile/17175506995265962354noreply@blogger.com0tag:blogger.com,1999:blog-1376852297850165449.post-43818634203951507522010-03-31T05:03:00.000-05:002010-03-31T05:03:00.375-05:00Are Your Legal Processes Ready for Outsourcing?<a href="http://1.bp.blogspot.com/_vPcFJjVxULY/S7KmAF3kKTI/AAAAAAAAANw/XqXukmNfNMQ/s1600/j0432728.jpg"><img style="MARGIN: 0px 10px 10px 0px; WIDTH: 200px; FLOAT: left; HEIGHT: 134px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5454604619204536626" border="0" alt="" src="http://1.bp.blogspot.com/_vPcFJjVxULY/S7KmAF3kKTI/AAAAAAAAANw/XqXukmNfNMQ/s200/j0432728.jpg" /></a><br /><div>As legal departments around the world look for ways to keep up with demands without growing their budgets, “legal process outsourcing” (LPO) appears to be taking root (1). LPO promises a way to offload certain work to vendors while containing costs and freeing up your in-house resources. LPO is not the same thing as hiring outside counsel, though some outside firms now offer or claim to offer LPO services. LPO is an effort to focus your legal department on its highest and best uses while diverting mundane tasks to those who specialize in them and have thus developed highly efficient workflow without sacrificing quality.<br /><br />Before you decide whether LPO is right for your department (2), however, or look for a vendor, determine whether your <em><strong>legal processes</strong></em> are suitable for outsourcing. Just because work is done by someone in your office does not mean it is necessarily “legal” or a “legal process.” And just because it is a recurring task does not necessarily mean that it is ready to outsource. The best work for a legal department or firm to outsource is recurring, repeatable, capable of sound quality control and measurable. Anything less than that will be ripe for problems very likely to more than wipe out any cost savings you seek from outsourcing.<br /><br /><em>Is the process “recurring?”</em><br /><br />Given the amount of effort that is necessary to assure results in line with outsourcing expectations, it makes little sense to use an LPO vendor for unique legal work. Traditional outside counsel would most likely outperform the LPO options once you take into consideration the learning curve, knowledge transfer efforts and other intangible aspects of establishing a viable LPO relationship.<br /><br />However, just because the work is unusual or has come up very rarely does not itself make LPO unworkable. It could be that the project is so large and involves so many smaller recurring, repeatable, measurable processes that <strong><em>those</em></strong> tasks can be cost effective to outsource, leaving the remainder of the project handled in-house or by traditional outside counsel. Document review within an unusually-large litigation matter is one example of this situation. With ten million pages to review, LPO vendors may offer better cost-benefit ratios than hiring your own army of contract document review attorneys.<br /><br /><em>Is the process “repeatable?”</em><br /><br />Not all legal work is ideally suited for outsourcing. Work that is unusual for your clients and for which a significant amount of strategic legal analysis is required will be better off kept in-house or sent to outside counsel. The work must be something you can quickly teach another lawyer to do well.<br /><br />Look first for the tasks that require the least amount of judgment calls, legal analysis and iterative client approvals. You may already have nonlawyer staff performing these in your office. If you are using contract, temporary attorneys for any tasks, those are also prime candidates for LPO.<br /><br />Ask yourself these things about the work to evaluate suitability for easy outsourcing:<br /><br />1. Can I write out the exact steps to complete this task accurately?<br />2. Can I provide adequate written guidelines for any decision points in the task?<br />3. Can someone who has never set foot in my department complete the task using those instructions and guidelines?<br />4. Can someone on my staff easily monitor output quality and quantity?<br /><br />The idea here is to fashion a set of written procedures so that the work can be done in efficient, repeatable steps by interchangeable outsiders without a lot of questions and direct oversight by your legal staff but with consistently high quality. In other words, work you can re-sell to your clients as your own without an apparent loss of value. Those are “repeatable legal processes.”<br /><br /><em>Is the process capable of solid quality control?</em><br /><br />If you lose more sleep by outsourcing than you gain, then something is wrong. You need confidence in the vendor as well as the quality of their work. When deciding which tasks might be suitable for LPO, “begin with the end in mind,” as Steven Covey advises.<br /><br />Take some time to envision the ideal LPO arrangement for each set of outsourced tasks:<br /><br />1. What will the output look like?<br />2. How will my staff monitor progress and accuracy?<br />3. How easily can errors be identified and corrected?<br />4. Who will correct the errors?<br />5. Will my staff need to or be able to add value to the work product before delivering to our clients?<br /><br /><em>Is there a reliable way to measure the work?</em><br /><br />Most LPO vendors will likely have alternative pricing options for the types of tasks you seek to outsource. Some can be priced by the “piece” (such as a set fee per page, like court reporters charge) while others are priced by the hour with a maximum cap for the project. Before you engage vendors, take some time to think about ways to measure and pay for the tasks. The billing arrangement should dramatically shift the risk of inefficiency to the LPO vendor. After all, you are primarily looking for ways to contain costs without sacrificing quality. Otherwise, the LPO route is not likely going to be attractive.<br /><br />Taking a page from litigation support vendors, some LPO companies look for piece rate options and then seek to set a fee that provides ample margin for their expected inefficiencies and profit. Tasks such as document review, permit applications, routine contracts and routine correspondence (demand letters, notifications, etc.) fit in this category. It will help quite a bit if you already know how much the tasks cost your department before you field bids from LPO vendors. At the least, work through some formula that allocates salary, benefits, overhead and supervision to the work so you have a basis for evaluating bids.<br /><br />Other LPO vendors request hourly rates that undercut outside counsel but still provide adequate margins for themselves. The key here is naming an acceptable guaranteed quantity per hour or day so you are assured of those savings, assuming quality is at least as high as the work by your own staff or present outside counsel. Legal research and briefing support typically fits in this category. Again, if you understand what the work costs you to perform in-house, you can better evaluate any bids from vendors. Also, determine the realistic turn-around time for your in-house staff. If they are capable of doing the work in less than four hours, but have two weeks of backlog ahead of the task, find a way to evaluate that “delay factor” in your analysis.<br /><br /><em>Have you considered all the pros AND cons? </em><br /><br />There are many other aspects of beginning an LPO arrangement to consider, of course. (3) The points above are directed primarily at your evaluation of the work you want to outsource. Even so, LPO is a growing industry and large corporate legal departments such as General Electric and Rio Tinto have already made large moves to take advantage of the perceived potential benefits.<br /><br />NOTES:<br /><br />1 For a very thorough description of LPO by then-Tufts University 3L Maya Karwande, see: “Student Research examining the Legal Process Outsourcing.”<br /><br />2 This post is addressed to counsel in for-profit businesses in the U.S., though the same considerations are generally applicable to government counsel, some law firms and some nonprofit legal counsel.<br /><br />3 In another post, I will explore the ethical considerations for LPO work, including the differences between “near-shoring” and “off-shoring” the tasks for U.S. counsel.<br /><br /><br /><br /></div>Lewis Kinardhttp://www.blogger.com/profile/17175506995265962354noreply@blogger.com5tag:blogger.com,1999:blog-1376852297850165449.post-70335186593696847372009-11-11T04:30:00.000-06:002009-11-11T04:30:01.531-06:00What You Should Know When Selecting Software for Your Organization - Part Three<a href="http://4.bp.blogspot.com/_vPcFJjVxULY/SuiA9qTTjHI/AAAAAAAAANo/RtpTBAg5ZjM/s1600-h/computers.jpg"><img style="MARGIN: 0px 10px 10px 0px; WIDTH: 200px; FLOAT: left; HEIGHT: 200px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5397705950219177074" border="0" alt="" src="http://4.bp.blogspot.com/_vPcFJjVxULY/SuiA9qTTjHI/AAAAAAAAANo/RtpTBAg5ZjM/s200/computers.jpg" /></a><br /><div>In Part One of this series, <a href="http://lewiskinard.blogspot.com/2009/07/what-you-should-know-when-selecting.html">“Assess, then Search,”</a> I began with a description of the needs assessment phase. For Step Two, I described the actual <a href="http://lewiskinard.blogspot.com/2009/09/what-you-should-know-when-selecting.html">product search phase</a>. Here, in Step Three, I turn to the evaluation and decision phase.<br /><br /><em>Sifting through the rubble</em><br /><br />Depending on the type of procurement, you may have anywhere from zero to 30 responses to an RFI. It may seem daunting, but there are tricks to sorting through the responses to help you narrow the list to a few key options.<br /><br />Start with your most firm requirements. Do you need something that allows a certain number of concurrent connections without performance loss? Does each product work with the other applications you plan to keep? Will it adequately accommodate your remote access needs? Does it work with your server OS? Whatever they are, the core “must have” features should drive your first pass through the product materials and RFI answers. Create your short list and set the others aside in case you need to go back to them.<br /><br />Next, rank the “nice to have” features and start with a weighted rating system. Some product selection committees use the “greatest number of hits” method (where every positive answer gets one point). Others use a weighting and voting formula that assigns a relative value to the features based on importance, then rates how well the solution addresses each item. For example, Mac compatibility may get a relative value of 6, compared to Windows compatibility’s 10. If the product is very strong on its Mac OS compatibility, the most that vendor will get is a 6, whereas if it also is not ideally used on a Windows PC, it might get a 5 or 6. Because the Windows feature is more important, even a 50% rating counts about the same as a 100% hit on the Mac feature.<br /><br /><em>Do your homework</em><br /><br />Armed with a short list, the committee members need to become sleuths, using all available tools to find out as much as possible about the company, the product and the customers who use it. Try web searches (and be sure to browse at least 3-5 pages deep into the results), call references (and ask them for the names of other customers who use the product in your industry who may have not been put on the reference list), contact companies listed as technology partners (find out if the partnership is robust or just passive) and go visit the company’s office (make sure you are dealing with more than a garage project). "Trust, but verify."<br /><br />If you have the time and budget, go sit with users who already employ the solution in business environments like yours. You can learn more from just one of these trips than you may learn in a product demo by a skilled sales rep. If you divide and conquer the list of customers, make sure each person uses the same checklist and reporting form to get data for apples-to-apples review back in the office.<br /><br /><em>Structure the demo</em><br /><br />With a lot of good background information, it is time to prepare for the product demo. Even if you have seen a generic product demo already, go to the effort to host a quasi-proof of concept. Based on your own expected daily usage, write a script of challenges that you will expect the software to handle once the product has been installed. Explain your goals for each scenario (“to see how fast a typical user can accomplish the task,” for example, or “to see how many efficient ways a user may complete the task”) and the other systems that would normally be involved.<br /><br />Allow adequate time for the vendors to perform each scenario, followed by specific question & answer time to review the results. Your research will help you target questions as you address any concerns uncovered when talking to other customers, for example, or that have arisen since the RFI responses came back.<br /><br />Make sure you carefully manage the demo to avoid wasting time on lesser topics to the detriment of discussions on important matters. If necessary, have a facilitator who can make sure the discussion moves around the room and one or two eager participants who may not accurately represent all interests do not dominate the Q&A session.<br /><br /><em>Consider the consequences</em><br /><br />Once the demos are over, reconvene the committee for a frank discussion. The risks you must worry about at this step are typically bias, hidden agendas and ignorance. Some people got on the committee in order to make sure their department’s needs receive priority over others’ needs, while other people may simply have had their minds made up before the entire process began. One of the worst and typically unexpected obstacles for product selection committees, however, is ignorance.<br /></div><br /><div>You cannot safely assume that everyone in the group came equipped with the same knowledge or comprehends the needs or solutions. Ask. Does everyone know about the platform compatibility issues you have or expect? Does everyone understand the new technologies proposed and how to compare them? Does everyone have a clear understanding of how each vendor proposes to address need X? You cannot rely on the vendors’ ability to sell their solution unless you are willing to take the risk that you may not end up with the best result.</div>Lewis Kinardhttp://www.blogger.com/profile/17175506995265962354noreply@blogger.com0tag:blogger.com,1999:blog-1376852297850165449.post-64003956725593956562009-11-04T02:06:00.001-06:002009-11-04T02:06:00.234-06:00Consistency in Employment Practices: Angel or Hobgoblin?<a href="http://1.bp.blogspot.com/_vPcFJjVxULY/Suh_kNkeMpI/AAAAAAAAANg/5-L4mv9-iCg/s1600-h/Goblins.jpg"><img style="MARGIN: 0px 0px 10px 10px; WIDTH: 200px; FLOAT: right; HEIGHT: 132px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5397704413498192530" border="0" alt="" src="http://1.bp.blogspot.com/_vPcFJjVxULY/Suh_kNkeMpI/AAAAAAAAANg/5-L4mv9-iCg/s200/Goblins.jpg" /></a><br /><div>There is an old saying, “consistency is the hobgoblin of small minds,” that is often used by those who reject accountability and rules. But these people misquote Emerson, who actually wrote, “<em>foolish</em> consistency is the hobgoblin of small minds.”<br /><br />In fact, based on decades of court decisions in employment law cases, consistency is the simplest way to limit many employment law claims against the employer. I am sure Emerson would agree that such consistency is neither foolish nor a hobgoblin.<br /><br />To begin with, you need clear, written policies and procedures. (See earlier post, "<a href="http://lewiskinard.blogspot.com/2009/05/why-written-policies-and-procedures.html">The Importance of Written Policies</a>.") That seems obvious, but for too many small businesses (defined here as organizations with annual revenues under $25 million), management continues to believe they are “too small” to worry about such formalities or, as I have heard stated a number of times, “we cannot afford to act like a larger company.” (See earlier post, "<a href="http://lewiskinard.blogspot.com/2009/03/managing-risk-through-compliance.html">Managing Risk Through Compliance</a>.")<br /><br />Perhaps an ulterior motive for not writing down policies and procedures is that managers want to avoid accountability for themselves. The downside, unfortunately, is that it creates a greater risk of exposure to employment practice-based lawsuits. Worse, it makes those suits more expensive because there is more litigation over establishing what the employer’s actual policies were in practice, rather than focusing only on the grievance at the root of the claim.<br /><br />Especially in a small organization, “flexibility” can appear suspiciously like bias in favor or against a particular race, gender, nation of origin or other protected class. Even where the EEOC lacks jurisdiction, private law suits can threaten significant financial injury to small businesses and organizations. Grant one employee’s request for flexible work hours but deny another and you may face allegations of illegal discrimination without the support of written policies and documented business needs.</div><br /><div>If you lack written policies and procedures, make sure you provide true business reasons for your personnel decisions and document them thoroughly—ideally in a written answer to the request. But beware: even a drowsy jury will perk up and spot a sneaky effort to cloak a preferential favor with a fake business reason. And the verdict will not likely be pretty.</div><br /><div></div>Lewis Kinardhttp://www.blogger.com/profile/17175506995265962354noreply@blogger.com0tag:blogger.com,1999:blog-1376852297850165449.post-45911879652394657772009-10-28T12:08:00.005-05:002009-10-28T12:40:33.849-05:007 Items You Should Have in Separation Agreements for U.S. Workers Over 40<a href="http://2.bp.blogspot.com/_vPcFJjVxULY/Suh5Y0tQQPI/AAAAAAAAANY/DTmIYhRnGMM/s1600-h/Fired+Notice.jpg"><img style="TEXT-ALIGN: center; MARGIN: 0px auto 10px; WIDTH: 320px; DISPLAY: block; HEIGHT: 242px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5397697620775813362" border="0" alt="" src="http://2.bp.blogspot.com/_vPcFJjVxULY/Suh5Y0tQQPI/AAAAAAAAANY/DTmIYhRnGMM/s320/Fired+Notice.jpg" /></a><br /><div>The <a href="http://www.eeoc.gov/policy/adea.html">Age Discrimination in Employment Act of 1967 </a>(“ADEA”), was signed into law by President Johnson. Its stated goal is to protect workers age 40 and older from age discrimination. Since enactment, the ADEA has been amended several times, including changes within the <a href="http://www.eeoc.gov/abouteeoc/35th/thelaw/owbpa.html">Older Workers Benefit Protection Act</a> (1990). Since the OWBPA, the general practice followed by most employment law attorneys has included formal separation agreements in order to foreclose claims and prevent problems while the employee is willing to trade a release for valuable consideration.<br /><br /><em>Before the Termination Notice</em><br /><br />When an employee does not perform as required, it is vital that the employer document the substandard performance and the employer’s efforts to obtain satisfactory performance from that employee. (See earlier post, “<a href="http://lewiskinard.blogspot.com/2009/05/wasting-money-with-wrong-staff.html">Wasting Money With The Wrong Staff</a>.”) You should ensure that you adequately communicated those performance expectations and that those standards are reasonable and consistent for all employees in the same job classification. (More on that in a later post.)<br /><br />If the termination is for economic reasons, you have less concern about performance but new concerns when hiring afterwards. The laid-off employees will pay close attention to anything that looks like an effort to replace them with younger (and presumably cheaper) staff. Make sure you maintain documentation of the economic considerations other than the relative cost benefits of hiring younger staff at lower salaries. Eliminating an entire department is more defensible than only part of the department.<br /><br />Make certain the documentation is complete and the personnel file is in order. (For suggestions on important employment agreement documents and terms, see my earlier post, "<a href="http://lewiskinard.blogspot.com/2009/06/when-hiring-consider-firing-first.html">When Hiring, Consider Firing First</a>".) It is essential that you follow your own policies and procedures to the letter. And never attempt to cover up an economic termination with manufactured performance failures.<br /><br /><em>Magic Paperwork </em><br /><br />At the separation conference with the employee, you should already have prepared the following documents:<br /><br />1. Separation Agreement with Release of All Claims<br />2. COBRA notification paperwork (if applicable)<br />3. Final paycheck as required by state law<br /><br />The separation agreement, even for terminations for cause, should include these seven things:<br /><br />a. A brief statement of the reason for separation. If the termination is for cause, the employer usually has more leverage than in other situations. This section does not have to restate the list of violations in detail, but can simply categorize the grounds as “for cause” or other terms used in the organization’s personnel manual or collective bargaining agreement. </div><br /><div>b. A release of all claims against the employer. This need not be mutual, but cannot be prospective under federal and most states’ laws. The goal is to foreclose any claims based on anything that occurred prior to the effective date of the agreement. You do not want a stray overtime or discrimination claim to pop up later based on events prior to termination.<br /></div><div><br />c. A statement of the compensation terms. All contracts must be supported by an adequate exchange of value. In return for the employee’s agreement to never pursue any claims he may have, the employer should provide something of obvious value. This can be cash, health insurance premiums, payment of unused leave beyond what the employee is entitled to receive, or other forms of compensation. You want the employee to see the benefit of accepting the offer, so frame the compensation accordingly without going overboard.<br /></div><br /><div>d. An ADEA/OWBPA clause. Workers over 40 must have at least 21 days to review the agreement or take it to their own legal counsel. They also have 7 days to revoke their signature. Never count the day you provide the document or the day it is signed. Therefore, you should not give the compensation until the 8th day after the employee has returned the signed agreement, counting the day after you receive it as the first day.<br /></div><br /><div>e. A confidentiality clause specifically for the separation agreement. Again, it need not be mutual. You want the employee to keep secret the existence of the agreement and any payments under it. A penalty clause may be difficult to enforce unless you spread compensation over a lengthy period, but you should include it, anyway. The risk of attorneys fees, litigation and even embarrassment may be enough to discourage violation, even for a “judgment-proof” former employee.<br /></div><br /><div>f. A jurisdiction and venue provision. Within the confines of your local employment laws, attempt to limit the places where the employee may litigate any disputes under the agreement. You want all litigation to take place where it is convenient for your lawyers to handle any disputes.<br /></div><br /><div>g. A general confidentiality clause for the organization’s secrets. You should have a confidentiality agreement already in place and signed at hiring, but consider re-stating it in the separation agreement. If you do not have one signed by the employee, then make certain to include it. Consider adding stipulated penalties and remedies to the extent appropriate in your jurisdiction. For some secrets, such as data covered under personal data privacy act, you probably have a duty to exact this agreement or confirmation.<br /><br /><em>Closing the Deal</em><br /><br />Walk the employee through the documents, answer questions—but do not give legal advice—and make sure the employee understands the OWBPA timeframes. It never hurts to explain how the employee will benefit from accepting the package deal rather than refusing to sign, as long as you do not cross the line into legal advice, coercion or threats. If the worker is under age 40, you can agree to making payments faster than the OWBPA times, but you do not have to.<br /><br />Some managers have balked at the prospect of “paying off” employees they terminate for cause. There is a good argument that such compensation is not necessary. However, if the goal is certainty and “buying peace,” a modest payment can be far cheaper than the deductible under your employment practices insurance policy. Unless you are a law firm, litigation will be a distraction from your primary mission and will involve significant non-financial costs even to win. Even for law firms, time spent suing or defending your own firm is money lost from work that could be billed to the firm’s clients. When the odds against collecting your legal expenses from a former employee are very low, you have a lot to gain from this strategy.<br /></div><br /><div>Whether for cause or economic reasons, employers who terminate staff need to always keep the ADEA and OWBPA in mind. It is generally a good practice to follow these same guidelines for all involuntary separations, but doing so with so-called older workers can help avoid costly employment discrimination claims.</div><br /><div><br />_________________________</div><br /><div>NOTE:<br />This article is only a general guideline based on U.S. law. It is not intended to be and should not be relied upon as legal advice. Your state and local laws may give you more or fewer options in employment situations and local laws vary considerably. You should only use this as a discussion guide when reviewing your particular situation with a lawyer licensed in your jurisdiction. </div>Lewis Kinardhttp://www.blogger.com/profile/17175506995265962354noreply@blogger.com0tag:blogger.com,1999:blog-1376852297850165449.post-54998277002527762732009-09-29T12:48:00.002-05:002009-10-29T08:24:43.184-05:00Avoiding Problems After a Major Disaster Hits Your HomeThis week, my post is featured on another blog, the LSLA Newsroom. Please read it there: "<a href="http://lonestarlegalaid.blogspot.com/2009/09/avoiding-disaster-after-major-disaster.html#links">LSLA NEWSROOM: Avoiding Disaster After a Major Disaster Hits Your Home</a>."Lewis Kinardhttp://www.blogger.com/profile/17175506995265962354noreply@blogger.com0tag:blogger.com,1999:blog-1376852297850165449.post-8652567714426467582009-09-16T03:07:00.002-05:002009-09-16T10:22:59.566-05:00Drafting Good Policies for Social Media Use at Work – Part One<a href="http://2.bp.blogspot.com/_vPcFJjVxULY/SqafOqO3HeI/AAAAAAAAAM4/gKu7IhrUpNA/s1600-h/social+puzzle.jpg"><img style="MARGIN: 0px 10px 10px 0px; WIDTH: 320px; FLOAT: center; HEIGHT: 320px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5379161879144242658" border="0" alt="" src="http://2.bp.blogspot.com/_vPcFJjVxULY/SqafOqO3HeI/AAAAAAAAAM4/gKu7IhrUpNA/s320/social+puzzle.jpg" /></a> <br /><em>The Risks and Reasons</em><br /><br />Social media is not going away. It is going to explode on the work scene. New tools like Google’s Wave are coming out, which means FaceBook-type communication is becoming the norm, not the exceptional. If you think the lines between personal and work life are blurred now, just wait.<br /><br />The benefits of limited social media usage at work have become more clear, especially in very dynamic industries. B2C businesses can put their fingers on the pulse of consumer frenzies as they develop and build both brand awareness and loyalty with direct connections to their prospective customers. B2B businesses can monitor industry developments and buzz about their competitors by customers while shoring up their reputations and proactively cutting off damaging rumors as they start. Advocacy groups can connect easily and see instantaneous developments that may be successful in other places while gathering supporters who are passionate about their cause. Communities of all kinds have sprung up across the social mediasphere and continue to multiply.<br /><br />There are many risks hidden beneath each social media (SM) page, however. Most can occur very easily both intentionally and unintentionally:<br /><br />+ Divulging trade secrets<br />+ Violating data privacy laws<br />+ Libel and defamation<br />+ Violating federal and state securities laws<br />+ Breaches of professional confidentiality obligations<br />+ Misrepresentation of authority<br />+ Brand dilution<br />+ Harassment<br /><br />Because intentional acts are obviously a threat, I will focus on unintentional ways your staff may cause problems for themselves and your organization through their SM usage.<br /><br />1. Identity & Authority<br />When a person speaks, the audience often looks to see what authority she has. Online, the clues can be found in the commentator’s profile: email address, employer name, job title and even business address. If your staff use their work email addresses for their personal online socializing, there is a risk of confusion by the public as to which positions, photos and postings are the employees and which ones represent the employer.<br /><br />It is one thing to embarrass oneself online with pictures showing a wild time. It is another thing to put your employer in a bad light by linking your crazy cavorting to the company—or worse, posting pictures from a company event without company approval.<br /><br />2. Breaches of Confidentiality<br />A recent case where a law firm associate publicly Tweeted as he was reviewing documents during discovery grabbed headlines in some circles. He did not reveal any names, but his opposing counsel was listening and learned through implication about the existence of a potential treasure trove of evidence that the firm had not yet even evaluated, much less disclosed during litigation. In technology, the risk of divulging trade secrets is high, as many senior managers are unaware how decipherable some comments are to those who know the programming language or engineering terms. If a tech grumbles about a particularly thorny challenge with enough detail, the cat will be out of the bag about what he is working on before anyone has a chance to prevent it.<br /><br />Data privacy laws apply to the employees of an organization as well as the organization itself—even when the employees are “off the clock,” so to speak. There are serious consequences for violating various privacy and confidentiality laws, even if there is no immediate, actual harm.<br /><br />3. Insider Information<br />Public companies always run the risk of crossing lines related to their stock. If some news leaks through a few FaceBook photos or updates, then an executive buys or sells shares even coincidentally, the company and the executive can spend dozens of hours and a lot of money defending allegations of improper trading even when they are not guilty. Likewise, in the age where your competitors “listen” with ears not to the ground, but to their Twitter space, random, disparate Tweets by different people located thousands of miles apart aggregate into a picture that can cost you your edge.<br /><br />4. Harassment<br />Abusive language and constant messaging would not be tolerable inside the organization’s network. But some employees feel the freedom to act disrespectfully when in their own little SM worlds. They forget about the profile information that lists where they work, their work email address or even what they do, and then blast a peer or worse, a supervisor, and think no one will tie the post back to their place of employment. Cyber stalking and cyber bullying have become well-known terms, which is unfortunate.<br /><br />In the next post in this series, I will survey some of the guidance available when crafting your own social media policy.Lewis Kinardhttp://www.blogger.com/profile/17175506995265962354noreply@blogger.com0tag:blogger.com,1999:blog-1376852297850165449.post-47496239333896057192009-09-09T09:09:00.002-05:002009-09-09T09:09:00.346-05:00What You Should Know When Selecting Software for Your Organization - Part Two<a href="http://2.bp.blogspot.com/_vPcFJjVxULY/SqaX2wMikWI/AAAAAAAAAMw/EHXqFYEzUAU/s1600-h/question+key.jpg"><img style="MARGIN: 0px 0px 10px 10px; WIDTH: 214px; FLOAT: right; HEIGHT: 320px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5379153771846865250" border="0" alt="" src="http://2.bp.blogspot.com/_vPcFJjVxULY/SqaX2wMikWI/AAAAAAAAAMw/EHXqFYEzUAU/s320/question+key.jpg" /></a><br /><div>In my <a href="http://lewiskinard.blogspot.com/2009/07/what-you-should-know-when-selecting.html">earlier post </a>on this subject, I outlined Step One, “Assess, then Search.” The idea is to build a frame around the search to help limit the distractions by irrelevant solutions. Once your needs assessment is complete, what do you do with the resulting list?<br /><br />For Step Two, the actual product search phase, I will explore some of the self-created risks many software buyers face during this important decision process as well as how to work through them.<br /><br /><em>What is on your technology shopping list?</em><br /><br />A thorough needs assessment will guide the initial shopping phase, whether you issue a Request for Information (RFI), search key terms on the Web or seek referrals from other organizations who use similar software. Many use a detailed checklist that moves from general feature to specific function to narrow the list to a select few.<br /><br />The essential features and requirements should be there, but do not hesitate to add your wish list of nice-to-have features as well. You may not be aware of what is available and if you do not ask, you may never know what you can have within your budget. Most large businesses use a comprehensive matrix of questions and answer spaces, often provided in Word or Excel format to allow the responding vendors to fill in their answers.<br /><br />One mistake that many purchases make is to become too wedded to their list. As you learn more about what is available, your feature list may evolve and mature. If your needs change, there is nothing wrong with changing what you ask of the prospective vendors. Never be afraid to throw out the information gathering results and start over or at least send out a second round of questions. The vendor needs to earn your business and it is their job to sell you, not the other way around.<br /><br />When I was pitching software, it was nice to find prospective customers who actually sought unstructured input and suggestions on thorny business needs. Whether in the RFI or during a sales presentation, find a way to open the discussion to allow creative problem-solving with the vendor’s professional staff (not simply a sales executive who may promise you anything to get the deal).<br /><br />Make sure your checklist addresses these vendor qualities in addition to your software feature needs:<br /><br />-> Customer Satisfaction with the product AND the company – What do their customers say about each? How willing are they to give you names?<br />-> History of providing update communications – How well do they alert customers about known issues before the customers report them? Or do they pretend each report is an amazing discovery they have never seen before? (See also, <a href="http://lewiskinard.blogspot.com/2009/04/is-your-software-vendor-your-friend.html">"Is Your Software Vendor Your 'Friend'?"</a>)<br />-> Business maturity – How long has the company been in business and in the software business? How sophisticated are their developers and product design professionals? Who drives development, the Sales department or a professional software design expert?<br />-> Market focus – How many customers like you do they already have? What do they know about your industry or business model?<br /><br /><em>Who is on your product selection committee?<br /></em><br />Whether you have an IT Department, a single Network Administrator or an outside consultant, make sure you get sound advice and input from your trusted tekkie who is up on current tech standards and trends. Technology changes rapidly and the accepted guidelines from even two years ago may no longer hold. Technical input is crucial to ensuring that your investment will not fall apart under everyday usage.<br /><br />At least as important, however, are the actual users. IT can guide you, but be aware that they often look at software purchases in terms of how much trouble the product will be to install and maintain, not how well-suited it is to your business operations needs. IT, for example, may prefer web-based solutions because they are easier to deploy and maintain. Users, however, may need more power at the desktop level or off-line capabilities. Who wins a stand-off in that situation? Do the needs of the many outweigh the needs of the few, or the one? On the otherhand, users tend to want products that are not much different from what they already have or know. Ease of use is an understandable demand, but fear of change may color their input and pull you away from a product that will help you grow and expand for years to come.<br /><br />The software vendors will play to the power on your selection committee. If they see that as IT, you can expect pitches that tout the technology “under the hood” and back-end qualities such as the application product interface (API) rather than features in the user interface or usability. If the vendors sense that users are at the helm, then you should hear more about ease of use, simplicity and configurability for the users and less about reliability, stability or technological limitations. Let them know right away that power is balanced between IT and users, even if there is a chief decision maker in the event of a tie who will consider both sides’ needs and input.<br /><br />In the final post in this series, I will cover the evaluation phase.</div>Lewis Kinardhttp://www.blogger.com/profile/17175506995265962354noreply@blogger.com0tag:blogger.com,1999:blog-1376852297850165449.post-56011397886886691702009-08-21T07:07:00.001-05:002009-08-21T08:11:47.265-05:00Ready to Hire Again? Strategize Before You Advertise to Avoid Discrimination Claims (Part Two)<a href="http://1.bp.blogspot.com/_vPcFJjVxULY/SovuLpApHzI/AAAAAAAAAL4/_HsNfD5fLoY/s1600-h/want+ads.jpg"><img style="MARGIN: 0px 0px 10px 10px; WIDTH: 214px; FLOAT: right; HEIGHT: 320px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5371648864323968818" border="0" alt="" src="http://1.bp.blogspot.com/_vPcFJjVxULY/SovuLpApHzI/AAAAAAAAAL4/_HsNfD5fLoY/s320/want+ads.jpg" /></a>In the <a href="http://lewiskinard.blogspot.com/2009/08/ready-to-hire-again-strategize-before.html">first post</a> of this two-part series, I covered the “Pre-Hiring Checklist” and “Inadvertent Discrimination.” This post addresses the importance of training and having a consistent, reliable business practice within your hiring process.<br /><div></div><br /><div><em>Train and Prepare Your Hiring Committee </em></div><br /><div></div><div>All of your preparations will be useless unless you adequately share the vision and guidelines with everyone who is part of the hiring process—including your receptionists and support staff. Do not leave it to chance that an uninformed staff member who may only interact with a prospect one time can slip up with a comment about something on the “off limits list.” </div><br /><div></div><div>If you can, train everyone at one time and well before the first phone inquiries come in. If not, at least get to everyone expected to be in each step of the process, starting with those who handle phone, email, in-person and other inquiries. Make a small cheat sheet to give them at training, ideally written in “Do” language, rather than “Do Not,” to avoid planting the wrong words in their minds. Some use a two-column approach, with the "OK" list on the left, and "Not OK" list on the right. For example: </div><br /><div>OK<span style="color:#ffffff;">-------------------------------------</span>Not OK </div><br /><div>“Where did you fly in from today?”<span style="color:#ffffff;">-----</span>“What country are you from, anyway?” </div><div>“Have you worked in sales long?”<span style="color:#ffffff;">-------</span>“How old are you?” </div><div>“The [weather] is really [whatever]!”<span style="color:#ffffff;">---</span>“You talk like someone from Russia.” </div><br /><div></div><div>If at all practicable, track the EEO profile of your applicants just as you do your employees for the EEO-1 report. This could be in the form of voluntary questions on the web application screen, as many now have, or in some separate form with no identifying details on it given directly to the HR officer of your organization and separated from the employment application and resume. Ideally, collect race and gender only in an anonymous fashion. Never try to guess based on surname, first name, etc. </div><br /><div></div><div><em>Inconsistency is the True Hobgoblin</em> </div><br /><div></div><div>Finally, take extensive steps to make sure all interactions with all applicants are consistent, fair and respectful. In other words, treat everyone the same to the extent you can and document how you did. Ideally, your organization already has in place a structured, formal procedure for the hiring (and separation) process. If not, here are some considerations for standardization.</div><br /><div></div><div>1. All job openings must be advertised by and all resumes and applications must go through one office or officer, such as your Human Resources (HR) manager. This makes it easier to keep track of the process, resumes and activity related to each hire. The right HR officer can keep you out of trouble 9 times out of 10 if he or she is part of the effort from the start.</div><div><br />2. All offers of employment must be issued by the HR officer. No matter who makes the decisions on start date, salary, etc., let the HR officer issue the offer letter. That way you know it goes out in a standardized form and no one is treated differently allegedly on an impermissible basis.</div><br /><div>3. All offers of employment must be in writing. End all compensation and employment term discussions with caveats such as, “Of course, it all has to be consistent with our internal policies and practices.” </div><br /><div>4. All letters or indications of acceptance must be given to the HR officer. Create the official “POC” for this process and stick with it. That way, you can rest assured that the employee manual, benefits enrollment forms, etc., all go out timely and consistently. The last thing you need is for a pregnant new employee to allege discrimination because her benefits were delayed when the HR officer did not “get the memo.”[1] </div><br /><div></div><div>With proper preparation and solid execution, you will start this new economic cycle with the best new staff to help you grow beyond your goals in coming years!</div><div>________________________________________</div><div><em>Important Notes</em> </div><br /><div>This article is not intended to be legal advice. You should consult with counsel regarding the specific laws in your area, because they vary extensively from state to state. If your employees have a collective bargaining unit, of course, other rules and limitations will apply, but the guidance above may still be within your reserved management powers if not specifically addressed in the union contract. </div><br /><div></div><div>[1] For many of the same reasons, all notices of resignation must be given to the HR officer, all resignations must be accepted in writing by an officer of the organization and given to the HR officer and all separation agreements must be issued by the HR officer. Once you have this in place, you will regret having taken so long to do it. </div>Lewis Kinardhttp://www.blogger.com/profile/17175506995265962354noreply@blogger.com0tag:blogger.com,1999:blog-1376852297850165449.post-29213570715304518372009-08-19T06:52:00.003-05:002009-08-19T07:06:59.334-05:00Ready to Hire Again? Strategize Before You Advertise to Avoid Discrimination Claims (Part One)<a href="http://1.bp.blogspot.com/_vPcFJjVxULY/SovoqcDOasI/AAAAAAAAALo/t0X7a-qWEhE/s1600-h/retail+store.jpg"><img style="MARGIN: 0px 10px 10px 0px; WIDTH: 320px; FLOAT: left; HEIGHT: 213px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5371642796351318722" border="0" alt="" src="http://1.bp.blogspot.com/_vPcFJjVxULY/SovoqcDOasI/AAAAAAAAALo/t0X7a-qWEhE/s320/retail+store.jpg" /></a>As the economy turns the corner and business picks up in general, hiring is sure to begin in earnest. There are a lot of potential employees for your business and you should expect a flood of resumes once you advertise your openings.<br /><br />Before you post the job ad, however, think strategically about your hiring plans. Employees can be invaluable assets as easily as costly mistakes. For small businesses and nonprofits, each hire is a significant investment of time and money. But each “fire” is usually much more costly. One employee with an unprofessional attitude or serious gap in ethics can ruin your reputation if not your entire business.<br /><br />This two-part series of posts will address the “Pre-Hiring Checklist,” “Inadvertent Discrimination,” “Train and Prepare the Hiring Committee,” and “Inconsistency is the True Hobgoblin.”<br /><br /><em>Pre-hiring checklist<br /></em><br />Ask yourself—or if you are large enough to enjoy a management team, have them discuss—the following questions:<br /><br />1. How much contact will this person have with our customers, funders, boardmembers and or investors?<br />2. How important will this person be to our success in the next 6 months? What about the next 3 years?<br />3. How will our expectations of this person evolve during the next 12-36 months?<br />4. How easily will we be able to replace this person on short notice?<br />5. How much time and effort will we actually devote to training and mentoring this new hire?<br />6. If the position is one that generates revenue, how long will it take for the new hire to generate enough revenue to cover his or her entire compensation package as well as all of the missed revenue during the training and learning phases (i.e., when can we expect them to pass the “initial break-even” point)?<br />7. What else will we need to hire, buy, lease or divert to get this new hire up to the skill level we expect?<br />8. How long do we anticipate we will need this new hire?<br />9. What skills should the new hire already have acquired before reporting to work?<br />10. What off-duty expectations do we have of employees in this category?<br /><br />Each question can easily lead to more as you explore the long-term and short-term vision for both the ideal and the worst-case disaster hire. Once the pre-advertising analysis is finished, make sure your job description matches the answers, then draft your advertisement.<br /><br /><em>Inadvertent Discrimination</em><br /><br />As you think through the job expectations, be careful not to develop a physical image of the candidate. Focus only on skills, qualities and capabilities OTHER THAN age, gender, race, national origin or religion. Unless your position fits into a very limited set of exceptions <span style="font-size:85%;">[1]</span>, it is illegal to discriminate in any aspect of the employment process on the basis of the following, and questions about these topics are OFF LIMITS:<br /><br />-> Birthplace<br />-> Ancestry<br />-> Culture<br />-> Linguistic Characteristics that may indicate some protected status<br />-> Religious Beliefs<br />-> Gender (including actual and potential pregnancy)<br />-> Age<br />-> Physical and Mental Disability<br /><br />Even though very small businesses may not be covered by the federal laws, it is generally a wise practice to behave in business as if you are covered by them because one day you may be. Some states have equivalent laws and many government contracts require compliance even if the business falls under the size limits. For <a href="http://www.eeoc.gov/policy/vii.html">Title VII of the Civil Rights Act</a> and the <a href="http://www.eeoc.gov/policy/ada.html">Americans with Disabilities Act</a>, the minimum size is 15 employees. For the <a href="http://www.eeoc.gov/policy/adea.html">Age Discrimination in Employment Act</a>, the minimum size is 20 employees. Those employee numbers only have to occur for 20 working weeks in the current or <em>previous </em>work year to put your organization under their umbrellas.<br /><br /><em>To be continued in the next post...</em><br />___________________________________________<br /><em>Important Notes<br /></em><br />This article is not intended to be legal advice. You should consult with counsel regarding the specific laws in your area, because they vary extensively from state to state. If your employees have a collective bargaining unit, of course, other rules and limitations will apply, but the guidance above may still be within your reserved management powers if not specifically addressed in the union contract.<br /><br /><br />[1] A <a href="http://www.eeoc.gov/abouteeo/overview_practices.html">good list</a> of these exceptions and the various anti-discrimination acts is available on the EEOC web site.Lewis Kinardhttp://www.blogger.com/profile/17175506995265962354noreply@blogger.com0tag:blogger.com,1999:blog-1376852297850165449.post-34884174026151033352009-08-13T04:48:00.004-05:002009-08-13T12:03:20.738-05:00Don’t Follow; Filter! Sifting Through Twitter's Vast Ocean of Information<a href="http://2.bp.blogspot.com/_vPcFJjVxULY/SoNjiKh80kI/AAAAAAAAALg/fM_gq4Ah0NA/s1600-h/twitter_logo.png"><img id="BLOGGER_PHOTO_ID_5369244619349217858" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 215px; CURSOR: hand; HEIGHT: 50px" alt="" src="http://2.bp.blogspot.com/_vPcFJjVxULY/SoNjiKh80kI/AAAAAAAAALg/fM_gq4Ah0NA/s320/twitter_logo.png" border="0" /></a><br /><div>Almost every day I see notice that one or more new Twitterers have chosen to “follow” me. The ones that catch my attention, though are those who follow over a thousand others. The first thought that comes to me is, “do they even <em>read</em> those Tweets? How can they possibly make sense out of thousands of 140-character messages every hour!?”<br /><br />Whether or not you are an experienced Twitterer (or <a href="http://www.facebook.com/">FaceBook</a> user) with hundreds or thousands of followers (or “friends”), you know, of course, that it would be a full time job to do so. But the truly experienced Twitterers (translation: been on <a href="http://twitter.com/">Twitter</a> more than 60 days and have posted at <em>least</em> 100 Tweets) knew a few tricks that you may find helpful.<br /><br /><em>Tip #1: Twitter is incomplete</em><br /><br />The simple interface gets you hooked. Yet, beyond sending out a Tweet or two, there is so much more you want to do but cannot find inside Twitter’s web interface. By design or by accident, the basic Twitter screen is one avid users outgrow rapidly.<br /><br />There are some partial features new to the user interface, but they are themselves incomplete. Case in point: search. <a href="http://search.twitter.com/">Twitter Search</a> was apparently intended for other software developers to use, and until recently, was only available on another web page. <a href="http://search.twitter.com/advanced">Advanced Twitter Search</a> is actually quite useful, but you still have to know where it is to use it.<br /><br />With the basic search field on your Twitter home page, you can put in terms and phrases—yes, even including those fantastic <a href="http://hashtags.org/">hashtags</a>—and get a quick list of Tweets with that term or phrase. You can even save your searches. Unfortunately, there is no “logic” feature to allow you to construct queries above exact match searches. Twitter has a simple tutorial for using Search to find people <a href="http://help.twitter.com/forums/10711/entries/14022">here</a>.<br /><br />Another feature that is missing is the ability to categorize your “Follows.” If you follow Congress, your favorite news site, product recalls, weather updates, your friends and a few companies who sell products you adore, all their Tweets are blended into one murky river of short messages. Twitter alone does not help you out here. For that, you need to read Tip #2.<br /><br /><em>Tip #2: Tools!</em><br /><br />For a free service, it is astounding how many developers have built equally free software or constructed free-to-use web pages to expand the ways people can use Twitter. These tools are divided into two categories for simplicity: general Twitter usage tools and Twitter Search tools.<br /><br />The venerable reference guide from way back in 2007, <a href="http://mashable.com/2007/09/29/twitter-toolbox/">“Twitter Toolbox,”</a> is still available online to give you a summary of over 60 tools to help Twitterers Tweet more effectively. Most of them are actually web developer tools to help others incorporate the power of Twitter in their web pages. A better list for users is OpenJason’s <a href="http://www.openjason.com/2009/01/08/100-twitter-tools/">“100 Twitter Tools.”</a>, posted earlier this year.<br /><br />You can also get ideas for useful tools from those you follow. Each Tweet typically names the service or software the Twitterer used to post the update. <a href="http://www.bing.com/">Bing</a> or <a href="http://www.google.com/">Google</a> the name and test them yourself. That is where I found <a href="http://tweetdeck.com/beta/features/">TweetDeck</a> and <a href="http://seesmic.com/desktop.html">Seesmic</a>, among other tools I use.<br /><br />For searching, there are separate lists of suggested tools that will guide your quest for the perfect way to find needles in the world’s most dynamic information haystack. Ari Herzog did a fine job with his critique, <a href="http://mashable.com/2009/04/22/twitter-search-services/">“6 Twitter Search Services Compared”</a> a few months ago. Loren Baker outlined <a href="http://www.searchenginejournal.com/twitter-search-apps/9126/">“9 Twitter Search Apps: Better than Twitter & Google”</a> for the Search Engine Journal. There are likely many more lists of suggested tools out there.<br /><br /><em>Tip #3: Be careful what you wish for!</em><br /><br />After you master the Twitter basics and settled on some tools, you are ready to begin sifting through the ocean for tiny plankton. Businesses may want to keep on-going searches for their company and product names. Politicians may want to watch for “mentions” of their opponents’ names and Twitter account names. Students can set up searches to keep track of trending discussions on current events or famous people. Prospective travelers can watch for discussions about their dream destinations.<br /><br />There really is no limit--which is a problem of its own. You can easily over-do the searching and monitoring to the point where you are overwhelmed once again. In that case, go back to Tip #2 and find a new tool!</div><div> </div><div>UPDATE: After publishing the above article, I found this helpful slideshow, thanks to <a href="http://www.blogger.com/Small%20Business%20Trends%20Radio%20has%20recently%20launched%20a%20slideshow%20showing%20readers%2010%20Ways%20To%20Build%20Twitter%20Followers.">a post</a> on the "Small Business CEO" site: "Small Business Trends Radio has recently launched a slideshow showing readers <a href="http://www.smbtrendwire.com/2009/07/23/10-ways-to-build-twitter-followers/" target="_blank">10 Ways To Build Twitter Followers</a>."</div>Lewis Kinardhttp://www.blogger.com/profile/17175506995265962354noreply@blogger.com0tag:blogger.com,1999:blog-1376852297850165449.post-76472540897851904152009-07-31T05:35:00.000-05:002009-07-31T05:35:00.777-05:00Managing Your Reputation Online - Part Three: Monitoring What is Out There<a href="http://1.bp.blogspot.com/_vPcFJjVxULY/SnG2nBfBYRI/AAAAAAAAALY/qffPjpLzHMM/s1600-h/URL+Field.jpg"><img id="BLOGGER_PHOTO_ID_5364269412704674066" style="FLOAT: right; MARGIN: 0px 0px 10px 10px; WIDTH: 320px; CURSOR: hand; HEIGHT: 210px" alt="" src="http://1.bp.blogspot.com/_vPcFJjVxULY/SnG2nBfBYRI/AAAAAAAAALY/qffPjpLzHMM/s320/URL+Field.jpg" border="0" /></a><br /><div>In <a href="http://lewiskinard.blogspot.com/2009/05/managing-your-online-reputation-part.html">Part One</a> of this series, I introduced the risks. In <a href="http://lewiskinard.blogspot.com/2009/06/managing-your-reputation-online-part.html">Part Two</a>, I outlined a checklist of preventive measures. Now, let’s look at some practical ways to monitor your business reputation in the blogosphere and other virtual spaces.<br /><br /><em>Keep your eyes open</em></div><br /><em></em><div><br />Reputation (and brand) management is ultimately a legal issue, so some general legal principles seem appropriate here. One that American law students learn early in law school is that “equity favors the vigilant, not those who sleep on their rights.” Another legal concept is the “Limitations Period” (in Louisiana, “Prescription Period”) codified in statutes.<br /><br />Where the statutes of limitation are specific laws enacted in the various states and by Congress and give set time limits to file a lawsuit or criminal charge after a violation of some other statute, principles of equity are typically less rigid and applied in the spirit of reasonableness. Both have the goal and effect of placing a time limit on when you can take legal action.<br /><br />Some of the time periods begin when an action occurs. Others only when the injured party “knew or should have known” about it. It is the second part of that you should worry about. If your name has been misappropriated or your protected property has been stolen, you will have to show that you did not turn a blind eye or blissfully live without any of the reasonable efforts a prudent businessperson would have undertaken to protect his or her own valuable property.<br /><br /><em>Set up monitoring tools<br /></em><br />What should you do to monitor yourself, then? With each medium, there are useful tools and ways to monitor for potential problems. These are a few of the better ones available today:<br /><br />1. Search Engine Alerts. In today’s information age, it is not considered vain to set a <a href="http://www.google.com/alerts">Google Alert</a> or <a href="http://help.yahoo.com/l/us/yahoo/alerts/">Yahoo Alert</a> to “listen” for your own name or other protected words or phrases. They are easy to set up and manage and then work tirelessly to continuously monitor for your selected terms among pages that these search engines index.<br /><br />2. Social Media Tag Searches. Social media is raging into our lives. Who does not know anyone with a FaceBook, Twitter, MySpace or similar account? That means there is a lot of “chatter” out there, some of it not so pretty. You cannot ignore the SM world, even if you are not a participant at this point. Use free tools like the web-based <a href="http://tagbulb.com/">TagBulb</a> or downloadable <a href="http://wareseeker.com/Communications/tagfetch-0.11.zip/333874">TagFetch</a> to watch for key words that people use to “tag” their comments.<br /><br />3. Twitter. Twitter searching has become a world of its own. You already get the automatic “@username” feature in your Twitter home page that keeps up with every Tweet that includes your username. To broaden that monitoring, however, you need a tool. There are countless tools available now. If you use a third-party application to manage your Twitterings, look for features built in that let you filter and search. Otherwise, try <a href="http://search.twitter.com/">TwitterSearch</a> (same company, different web page) or <a href="http://tweetbeep.com/">TweetBeep</a> tools. </div><div><br />4. Newsfeeds. This is getting into higher levels of technicality, but the tools are no more difficult to use than some of the others mentioned above. An RSS feed reader is simply another monitoring device that watches the “stream” of information flowing through the Internet. RSS (“really simple syndication”) is how many web sites these days send their content out when it is updated. It is very common for news sites, so you cannot afford to overlook it. Unless you have an aggregator like <a href="http://gregarius.net/">Gregarius</a>, <a href="http://www.bloglines.com/">Bloglines</a> or one of the many other <a href="http://en.wikipedia.org/wiki/List_of_aggregators">RSS Feed Aggregators</a> out there, you would have to check each individual RSS feed. </div><div><br />5. Video and other media sites. YouTube allows people to “broadcast yourself” and Flickr makes every photographer world-renowned (at least for a few seconds after posting). How do you sift through the noise? In addition to search engine alerts, consider something like <a href="http://www.video-alerts.com/">Video-Alerts.com,</a> a free service that specifically focuses on YouTube.<br /></div><div>(Of course, each of the strategies above can also be used for monitoring trends in your industry or tracking competitors, but that is outside the scope of this series.)</div><div><br />Finally, during my research for this post, I found other useful posts on this topic that you might find helpful: A slideshow, “<a href="http://www.slideshare.net/conniebensen/why-you-should-measure-monitor-social-media">Why you should monitor social media</a>” posted this week by Connie Bensen of Alterian; a good <a href="http://www.youtube.com/watch?v=O7aguLck21c">video essay</a> on how some businesses use Twitter to monitor their own names, and a <a href="http://venturebeat.com/2009/03/30/twitter-makes-vanity-searches-much-easier-with-replies-modification/">blog post</a> on how to monitor your name on Twitter.<br /><br />In a later post, I will focus on what action to take should you find a problem. Until then, get those alerts set up!</div>Lewis Kinardhttp://www.blogger.com/profile/17175506995265962354noreply@blogger.com1