Law And More

"If you want to paint an apartment in NYC, bring your paintbrush - and lawyer," Harold Shultz, CHPC

Planning renovations on your pre-1978 residence or the one your tenants occupy? You now face so much new red tape, thanks to the EPA's new layer of regs, that, Harold Shultz warns, "Bring your paint brush and your lawyer - you will need both."  Shultz is Senior Fellow at the Citizens Housing and Planning Council [CHPC] in New York and concerned about this additional burden.

Those new regs, being phased in between June 23, 2008 and April 22, 2010, make the maze of information and testimony presented at the Rhode Island lead paint public nuisance trial II seem like a text message. There are not only a lot of them. They're confusing.  And they actually add three categories of residential units which weren't previously been subject to lead-paint regulation, at least  not in NY. Those three are:

• Pre-1978 units where there is no child under 6
• One and two family houses, and
• Owner occupied coops and condos.

You can read CHPC's deconstruction of this curve ball in lead-paint abatement here.  It rightly decries that the regulations are so ponderous and ambiguous that they will have to be interpreted on a case-by-case basis. Think legal expenses.  Think delay in renovations.  But, most of all, think the children who won't be protected. This could represent a major setback in the public health success story of lead abatement.

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Harold M. Schultz, Senior Fellow, Citizens Housing and Planning Council, on EPA's new layer of lead-based paint rules, on the record:

"With the new EPA rules on repair and renovation of properties with lead paint, states and cities with their own lead paint laws now face a huge complicating factor in obtaining compliance.  TSCA 404(e) allows states and cities to have their own laws if they are more 'stringent' an the federal laws.

"But in the already highly complicated world of lead paint compliance, how is the average owner to figure out in jurisdictions that have their own legal overlays?  For instance, in NYC, if you start scraping and painting a post-1960 but pre-1978 apartment with a child under six, you are permitted to assume that the paint is not lead paint (NYC prohibited the use of lead paint in 1960).  However, under the new EPA rules, you will be required to test.  EPA rules will govern the testing since they are 'more stringent' than NYC in this instance.  However, once you test in NYC you will then 'know' that there is lead paint in the apartment.  Once you 'know' you will be required to follow the 'more stringent' NYC rules on work practices and clean up. Similar confusion will exist for coops and condos that are exempt from local law.

"So, if you want to paint an apartment in NYC, bring your paintbrush and your lawyer.  You'll need both.

"Of course the real net effect of having two complex laws that interact in a confusing way is less compliance with both.  To really protect children we need a simple, clear regimen that all can understand and comply with."

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Readers can reach the Citizens Housing & Planning Council [CHPC] at 42 Broadway, NY, NY 10004, 212-286-9211, info@chpccny.org.  You can reach Harold Shultz at 212-286-9211, ext. 110, hshultz@chpcny.org

Cadwalader: 96 MORE Laid Off - What should we make of this

Today Cadwalader, Wickersham & Taft announced that it is laying off another 96 lawyers, not all of them associates.  Last January it laid off 35 associates. Most of the cuts are, no newsflash, in the real estate and securitization practices.

What should be make of this? Well, first of all the large number - 131 in just about two quarters - gives license to other firms to do a reduction in forces.  If they chop less, they will call less attention to themselves than Cadwalader is getting today from legal and business media.

Since this round includes partners, even more partners can expect to be let go.  This is nothing new, of course.  There have been stealth layoffs of partner-level attorneys for a while now, at least my intelligence network of ghostwriters who did books for them tell me. We don't hear about much about those reductions because attorneys at that level still tend to embrace the civility ethos of going quietly into the night.

The second issue is other jobs or a career change for the unemployed associates and partners.  Some will land on their feet in another law firm if they have experience in a marketable area. As you recall, gay associate Aaron Charney sued his former employer Sullivan & Cromwell for discrimination.  Well, he recently got hired in the M&A department of British Clifford Chance's New York office.  Law-employment watchers had written Charney off as forever unemployable in law.  Now they're saying he had the right skills at just the time Clifford Chance wanted to enhance its Manhattan presence.

For those who don't find a lateral position in BigLaw, there's the option of joining together and creating a new model of law firm such as Valorum and Bates & Tyde.  General Counsels are putting the screws to BigLaw about billing.  Some corporations even make the GC go through Central Purchasing.  So, if those lawyers can figure out how to offer excellent service at a lower rate than their competitors, they might live happily ever after.

There is also the option of searching for an in-house position.  GCs are taking in more work that they used to farm out. The compensation was excellent last year because of big bonuses as well as stock options. Basic salary has remained stagnant.

However, some will have to consider leveraging their legal background and contacts into another line of work.  Among those that pay well are public affairs, lobbying, legal marketing, legal executive search, and corporate anything.  Regarding the latter, so many functions in corporate now use compliance and actual legal help. The best bet is to try process-oriented and/or highly regulated industries such as insurance.

No question, it takes time to find anything, never mind something appropriate.  The laid-off at Cadwalader have severance until the end of the year.  That doesn't mean to take it easy.  The best first tactic is to get some type of employment, perhaps in the evening, that serves to widen perspectives and to keep you alert. The day is free for interviews. Looking for a whatever all day, all evening, all weekend is a loser's positioning.  Employers can smell the unemployment on you.

If you're in the Connecticut area, the best investment might be to swing by and check your coping skills out with cognitive behavioral therapist [CBT] Amy Karnilowicz, West Hartford [860-216-5116, family.therapist@comcast.net].  When my communications boutiques tanked more than five years, Karnilowicz got me up and running in five months. 

Her CBT approach is taking action, not exploring feelings.  She had me get a job, any job. That was the best advice I ever received. Working at a job, any job moved me from the problem towards a solution.  I was happily employed as a contract loss prevention guard at Home Depot.  I received two awards for crimestopping.  The contract employer wanted me to join management. That restored my confidence.  Within several months I was putting together a number of new businesses.  Two panned out.

Dann - He's Baaaaaaack

Whatever the real reason, former Ohio Attorney General Marc Dann is requesting, as a private citizen, to have access to all the records associated with his 17 months in office.  THE COLUMBUS DISPATCH reports that Dann, who has gone back to private law practice, claims those documents will help him restart his firm. 

Others speculate Dann might fear what's in those records. He is a subject of multiple investigations, including his use of state and campaign funds. For us lead paint watchers, Dann's legacy will always be that he inflicted the lead paint public nuisance suit on the Buckeye State.

Lead Paint Groupies - They Go for a Gal with a Brain

I am casting spells on males in cyberspace, at least among those who are lead paint watchers.  I get email, phone calls ["I like to hear your voice"], and even snail mail [singing greeting cards].  Some of these men are movers and shakers in their own fields. But I keep that under wraps in the spirit of groupie/the desired confidentiality.

This has happened before.  Actually, it always happens when I have been in high-profile situations.  The men fall in love with my mind or, it seems, the raw quality of the intelligence.  It is working-class unfettered [read "Limbo: Blue-Collar Roots, White-Collar Dreams" by Alfred Lubrano].  In addition, there's the titillating wildness of creativity that hasn't been tamed despite too much education [Michigan, Harvard].

How does it make me feel to have my mighty mind have such power over men?  I don't have time for it. The mashup of blue-collar roots and upper-middle class success [at least in status if not money] laced with creativity keeps me too busy being appropriately tormented by demons. 

More importantly, I can't afford to have relief from the Sweet Suffering. Like Peanuts' creator Charles Schultz [great read on him by David Michaelis] I am no fool: I will do nothing to rid myself of these demonic muses. 

Causation - Let the raw data speak, argue Jones Day's Ellsworth, Moellenberg, Simmons in ABA EXPERT ALERT

As we all know from the Vioxx jury trials, proving causation is a complex process. And still there can be ambiguity and even controversy, particularly when scientific data are relied on as key evidence. Frequently this degenerates in the courtroom to "the battle of the experts."  We lead paint watchers endured four months of that in the Rhodie Island lead paint public nuisance trial.

That's why an article published in that American Bar Association's EXPERT ALERT, Summer 2008, should be of great interest to judges, lawyers, federal and state government, defendants, plaintiffs, NGOs, and, yes, the scientific community.  The title is "Let Data Speak Equally To All: The Production, Protection, and Use of Raw Data in Litigation."  The authors are Jones Day attorneys Laura Ellsworth, Chuck Moellenberg, and Neelie Simmons.

The first two have been prime players in the lead paint public nuisance litigation, representing Sherwin-Williams. Ellsworth argued her client's innocence both in the RI lead paint trial II and during the RI Supreme Court orals.  [Those with a subscription to ABA EXPERT ALERT can retrieve the article here.]

The article's focus is the need for access to the raw data on which scientific studies were based.  The Supreme Court agreed with this in "Daubert v. Merrill-Dow Pharmaceuticals, Inc."  In that decision it ruled that courts, federal and state, have the responsibility to ensure that scientific testimony is not only of relevance but reliable.  That entails making certain "that an expert ... employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field."

The most efficient way that can be accomplished, argue Ellsworth et al., is to have the data underlying the expert's opinion.  That can bridge the gap between the opinions, usually opposed, of the scientists testifying on each side.  More importantly, it can uncover overstatements, errors or downright fraud in the research.  The authors cite the deliberate misrepresentation by Dr. Herbert L. Needleman in research used in a lead pollution case.

Of course, this makes sense.  Too much so.  That's why there is such an aggressive push not to allow the raw data to be retrieved.  The objectives range from cost [not so much actually in this electronic age] to patient confidentiality [software can protect privacy] to the lack of necessity since publication of research is peer-reviewed [that peer review is an editorial procedure, not one assessing the research's validity].  Ellsworth et al. rebut those contentions.

The article concludes with eight cross-disciplinary principles to promote full and fair disclosure of raw material.  They range form the availability of that data to opposing attorneys at deposition, trial and motions to unpublished studies relevant to the case be permitted.

As I see this, adoption of the authors' recommendations can become a powerful force of tort reform.  The plaintiff bar would hesitate to bring class-action or even individual suits which rely on research whose methodology or statement of findings can be shown to be careless, inaccurate, hyperbolic, biased, or fraudulent. I suggest that this article be distributed to every tort-reform organization ranging from the Manhattan Institute to the U.S. Chamber of Commerce.

Lawyers joining rest of us in "mindfulness"

So many of us in other professions have already taken the path of "mindfulness."  As I define it, "mindfulness" is seeing our ordinary existence, including our daily work, in fresh ways.  The techniques are essentially derived from Buddhist philosophy and practices, but modified some for us Western types. 

I went on that path to detach from the pain of loss and of change.  That was five years ago.  Colleagues, friends and enemies comment that I seem more stable.  My reputation as a writer and communications consultant has improved, perhaps exponentially.

Now those linear, logical, verbal types - attorneys - are trying this out. In the NEW YORK JOURNAL Thomas Adcock reports that this fall a group of lawyers will attend a four-day "mindful meditation" retreat at the Menla Mountain Retreat and Conference Center, Phonecia, New York. It is co-sponsored by the Center for Contemplative Mind in Society and CUNY Law.  The facilitators will be monks. 

Their goal is to get the hang of a mindset set or view of the world that will provide the wisdom to be better attorneys.  That includes, says Adcock, the ability "to control their impulses and choose their words more wisely."

Multi-day retreats are the upscale way to the fundamentals of Buddhist thinking.  Research shows that the lion's share of Americans come to these practices through reading.  The shelves and shelves of Eastern Philosophy books and magazines in mainstream stores like Barnes & Noble testify to that.  I guess this is an extension of the self-help movement. 

But "mindfulness" is not the only way to improve our professional performance and emotional stability.  Attorney John Tarantino, who won an acquittal for his client ARCO in the Rhode Island lead paint trial II, is a passionate rower.  That seems to do the trick.

Scruggs & Son - Still filing motions

Dickie Scruggs and his son Zach are due soon in their respective slammers.  But they are still filing motions.  This one is to seal their testimony in regard to a Hurricane Katrina lawsuit.

They claim, reports Chris Rizo in LEGAL NEWSLINE, that "if their testimony is released their 'presumption of innocence' could be compromised where they fact criminal charges in the future."  The specific reason is a federal investigation that is still taking place.

Starbucks laying off 1000 MORE - Is BigLaw Next?

Starbucks went from being that "Third Place" in society - i.e. where we hang out in addition to home and work - to no place.  In addition to closing down 600 stores, its Chief Executive Officer Howard Schultz today announced 1000 more layoffs.  How this brand imploded and why it can't bounce back might have stern lessons for BigLaw.

At the top of those is how employees who see themselves as badly treated can push back all too effectively.  That bad treatment included having benefits for even part-timers touted as part of the Starbucks Way but alleged company manipulations to prevent many part-timers from getting enough hours to be eligible.  It was a law student in Manhattan who got the bad publicity on this and more rolling.  The rest has been bad karma.

Aaron B. Charney is the poster-boy for the growing number of malcontents in BigLaw who are also pushing back.  The fact that he did it - suing his employer Sullivan & Cromwell - and still landed on his feet has opened Pandora's box.  Charney, as Anthony Lin reports in the NEW YORK LAW JOURNAL, secured a great job in the the M&A Manhattan office of Clifford Chance.  In addition, rumor has it that in his self-handled suit he nailed down a nice chuck of money in a settlement.

Sullivan & Cromwell didn't tank but it took a brand hit. There will be more of them as too many law jobs become higher-paying Starbucks jobs - that is, not really leading anywhere.  There's less to lose in outing perceived injustice in employer-employee relations.  The media, such as AboveTheLaw.com and THE WALL STREET JOURNAL Law Blog, love detailing the juicy saga of every associate or even partner who doesn't quietly sneak off after getting canned. You might say that the white-collar ethos of workplace civility is vanishing.  In its place is working-class speaking up and getting even. [Good read on blue-collar values is "Limbo" by Alfred Lubano.]

Secondly, Starbucks grew too fast, primarily through cannibalization.  This is typical of BigLaw which all hired wildly during the past five years, willing to pay whatever to new hires.  And, it's not unusual to have set up different departments within the firm as profit centers - in essence, competitors.  A lot of nastiness, from stealth layoffs to warfare, results. Eventually that shows up in client service. It sure showed up in Starbucks' service. 

Third, Starbucks overestimated what the market would bear.  Sure it's cool to walk the streets of Gotham with Starbucks brand in hand.  But as the economy got sour and the competition like Dunkin Donuts and Mickey D got more confident, the market wasn't willing to bear those premium prices so often.  BigLaw is now the target of guerrilla activity from innovative models which can charge less.  Among them are Valorem and Bates & Tyde. 

Fourth, Starbucks watchers opine that the brand can't reinvent itself because it is stuck in the success formulas of its past.  Turned inward, it can't get out there, not in a new way.  The boom years, especially the past five or so, may have also convinced BigLaw that it hit upon something very smart about how to operate a firm. In marketing, we call that assumption a "false positive." Cause and effect get misread.  [For more on "false positives" read Chapter 2 of "Multichannel Marketing" by Akin Arikan.]

What should Starbucks and BigLaw do?  Answer:  What every other business has to do, eventually, in the 21st century.  That is, recognize that we're encountering a whole new set of factors and ask ourselves what we would do if we had nothing - no money, ego, track record, brand - invested in the operation. I finally did that in 2003 when nothing else worked.  And none too soon.  Much of my industry is in a depression.

Coaching, Law, PR, Management Consulting - NY Metro Bunkers

The angst is in their voice, not their words.  When these professional-services players, once movers and shakers, call me about possible assistance with their public relations, they are still bursting with surly authority. 

That's the only tone they know. And that's the tipoff that they will need lots more than public relations help.  See, their earlier success insulates them from picking up the whole game has changed.  A global downturn, head-spinning technology developments, and a marketplace that switched from services or products to client centricity were what changed it. Yet in those bunkers throughout the New York Metro area they continue doing what used to work or milking the cash cows.

Is it worth accepting them as clients?  No, I discovered. 

The only payoff is from negative learning.  But you only need so much of that. Aside from that, there's only the money, which is blood money.  We won't get results for them because they see no need to ditch success formulas from the past. 

Of course, then they will badmouth us.  That can prevent quality prospects from using us. Worst is the emotional wear and tear from the raw underbelly of angst.  They will call, email, and even want to get together in person more and more often.  Just spotting an email from them made me sleepy.  After I terminated one of the bunker types, he continued to pursue me.  That ended with a letter from my attorney pointing out that harassment in Connecticut is a felony.

Those souls can't be saved.  What about souls which have potential for redemption?  We can learn so much from working with them.  Enough to write a book.  Here's my recent e-one "Saving Souls on Park Avenue, K Street and in Greenwich, CT."  You can retrieve it free Download savingsoulsonparkavenuekstreet.pdf

Question: Is it coincidence that none of the law firms representing the former Rhode Island lead paint defendants are in the New York Metro area?  The defendants' official public affairs agency Prism isn't either.

"Rhode Island lead litigation will go down in history like Gettysburg" - Brandname Attorney

The worst-kept secret of the Rhode Island lead paint public nuisance litigation is that there were no winners.  Everyone knows that.  Every entity lost. 

The defendant companies - Sherwin-Williams, NL Industries, and Millennium - suffered too much for too long to ever feel anything except the immediate pain has stopped.

The people of RI, who were supposed to be helped by this class-action suit, could be paying through the nose for years the legal costs of the defendants, if the lawyers representing those companies do request reimbursement of nine years of expenses. 

The economy of RI ain't going to see any movers and shakers setting down roots in a state which is now infamous for being anti-business.

 Attorneys General Sheldon Whitehouse and Patrick Lynch who put the two suits in motion don't know how much those decisions could hurt their political careers. 

And, the private law firm which assisted them - Motley Rice - invested millions of dollars which it probably won't recover.  In addition, it invested its brandname which will require plenty of sophisticated work to re-build.

As with all tragedies, the best we can hope is that we can learn from them.  My mindset is: No more Rhode Islands.  But those lessons can't be learned unless we tell this story, even though it's not over.