The relationship between counsel hired to represent a corporation in litigation and a former employee who is being deposed raises several issues.  Are counsel’s communications with that former employee  protected by the attorney-client privilege?  As with most things in life, the answer is: it depends.

In general, to determine whether a communication is privileged the party claiming attorney-client privilege must show, among other things, that “[t]he asserted holder of the privilege is or sought to become a client.” Id. The attorney-client privilege has been applied to corporate counsel communications with current employees in specific instances. See Upjohn Co. v. United States, 449 U.S. 383 (1981).

In In re: Flonase Antitrust Litigation, No. 2:08-cv-03301-AB, 2010 WL 2649923, at *2 (E.D. Pa. June 30, 2010), plaintiffs sought to compel Ms. Bowers, a former employee of defendant GlaxoSmithKline (”GSK”), to answer questions about her communications with GSK’s counsel during recesses at her deposition. The court, applying Pennsylvania law, found that the communications between Ms. Bowers and GSK’s counsel were protected by the attorney-client privilege and refused plaintiffs’ request. The court found that Ms. Bowers’ communications with GSK’s counsel were protected because her “testimony concerned matters within the scope of her former responsibilities with defendant corporation and because her conversations with defense counsel may be relevant to defendant’s legal strategy.” In re: Flonase, 2010 WL 2649923 at * 2.

Although many courts have protected “communications between a corporate client and the client’s former employees,” In re: Flonase, 2010 WL 2649923 at * 2, they have not universally done so. For instance, a federal court in California, applying California law, came to the exact opposite conclusion when it held that a former employee’s communications to the corporation’s attorney were not protected by the attorney-client privilege as communications by the corporation to its attorney. Connolly Data Sys., Inc., v. Victor Technologies, Inc., 114 F.R.D. 89, 94 (S.D. Cal. 1987). The court reached its conclusion because the former employee: (1) was not “the natural person to speak for corporation;” (2) was not required to speak to the corporation’s attorney; and (3) was not the only one with knowledge of the matters at issue. Id.

Representing former employees individually may create conflicts issues for attorneys. Although the court’s order suggests that at least in Pennsylvania the need to represent former employees individually may be obviated, lawyers and the companies who employ them should be careful to avoid treating this court’s finding as a bright line rule.

Associate tips

If you have less than 10 or 12 years of experience, building a book of business may be a little tougher; but, time is on your side.  Many firms don’t expect you to have a large book at this point in the game.  (All the better for you when you surprise them with client relationships you cultivated!)

Network, network, network

The three most dreaded, but most important, words for any attorney.  If you want business, you have to get out there and meet people.  No matter what type of law you practice, you need to make connections with people in order to start generating revenue.  Each time you leave the office is an opportunity to meet a potential client.  Work on your elevator pitch, hand out business cards and attend social functions as often as you can.  The more people you meet, the more chances you have to start building a book.  It’s a numbers game, and you’ve got to play!

Build relationships with current clients

Repeat clients are the cornerstone for nearly every type of business, and the law is no exception.  If you are working closely with a client now, start building a relationship with that person.  In a few years, he/she may need your services again, and you’ll be the person to get the call.  Remember, clients are in business with attorneys, not with a law firm.  They want someone at the firm who understands their case and knows them as a person.

Work in conjunction with senior attorneys

Nothing beats having a mentor.  Many of the senior attorneys in your firm will have experience bringing new cases.  Ask them questions and go with them to client lunches.  Learn from someone who has already figured out the best way to get new clients and generate revenue.  No need to reinvent the wheel!

Partner tips

As a partner, you know the importance of generating revenue at the firm.  You’ve probably already followed the advice given to the associates, above.  However, you may not know how to build your book from here.  Maybe you’ve hit a wall or need some inspiration about new ways to get clients.   As always, we’re here to help!

Be responsive

Nothing is more annoying than calling an attorney and getting voice mail.  Be available to answer phone calls and emails.  Timeliness of your responses will be one of the major things that sets you apart from another lawyer.  Believe me when I tell you – if you don’t answer the phone another attorney will.   Make a goal for yourself:  one hour responses to all emails and 30 minute responses to phone calls.  With Blackberries and iPhones everywhere, this should be no problem.  (And, if you don’t have either a Blackberry or an iPhone, stop reading this, get in your car and go buy one!  They are crucial to your success!)

Reach out to family and friends

You’ve done the work parties, legal events, seminars and conferences.  What else?  Send out an email to your friends and family and let them know that you’re looking for new clients.  Although everyone will know that you’re an attorney, many non-lawyers don’t understand exactly what you do or with whom you work.  If you are specific in your email, you’ll definitely get a response.  The email should read something like this:  Dear ______, I’m working on building my client list, and I’d love for you to keep an eye out for the following type of client.  I currently work in intellectual property.  I’m looking for someone who recently started a business or someone who recently published a book.  If you have any such contacts, I’d be honored if you would send them my way.  I’ll be happy to help them secure a copyright or trademark for the business logo or the book.

Host a seminar

Pick a topic that would be appealing to your ideal client base.  What affects their businesses?  Are there new tax laws or regulations?  Anything in the economy that directly hurts or helps their businesses?  If so, they will definitely be interested in hearing more about this topic.  Learn everything you can and host a seminar.  It can be in the office or in a hotel conference room.  Wherever they can congregate conveniently.  At the end of the seminar, let them know that you are happy to answer any questions about this topic.  Hand out your business card.

Keeping these tips in mind, you will have new clients and a bigger book in no time!  Need even more help?  Feel free to contact us.  We’re attorneys, too!

Love this “Got Skills?” ad.  We had so much fun with these!

The few, the proud, the pre-screened.

Probably my favorite ad.  What’s yours?

As comfortable (or at least familiar) as your current position is, are you doing what you want to do?  Although things have been tough in the California legal market, we’re on the edge of an increase in hiring.   The California market will undoubtedly see some associate and partner movement in the next 12-18 months; so now is the time to think about your career path and really create your career.   Don’t just let things come to you – put yourself in a position to grow your career over the next one to two years.  With a little thought and planning, you could be at your dream job (whatever that may be) sooner than you think.

Creating and planning your career is simple, but it does take some quiet time and some concentration.  This is not a process you want to rush.   Like all great things in life, start with baby steps.   And, like all great things on the internet – take a quiz.

1. Are you happy with your job?
2. When someone says “next year, you’ll be doing ______” do you shudder in horror at the thought of being in that office in a year?
3. Do you believe you’ll retire from your current job?
4. When someone asks you what your dream job is, would you say “my current job”?

If you answered “no,” “yes,” “no” and “no,” you’ve come to the right place. You’ve got some planning to do.  As always, we want to help all of you – not just the new lawyers or the very experienced.  No matter where you are in your career, you can take charge and turn it into something wonderful.

Attorneys 0-6 years

You’re relatively new to law, and you’ve undoubtedly had a very steep learning curve over the last few years.   If you’re still wondering if your current job is the best job for you, it’s time to start asking some people who have experience.

1. Shadow a senior attorney.  Are you currently working in the practice area you love, and you’re ready to move up the ladder?  Speak with an attorney at your firm and ask to shadow him/her for a day.  Find out what they do, who they speak with, what they know.  Knowing how someone else got to their position and what skills are needed to do their job will give you some good insight on how to plan your next move within the firm.
2. Talk to more experienced attorneys.  Most people really like to talk about their jobs, and they will probably be flattered to be asked about their jobs.  Speak to an attorney who works in the practice area in which you’d like to work.   Talk to the attorneys candidly about what they like and dislike about their jobs.  Ask about the hours required, the type of experience required and so on.  Obviously, once this “informational interview” is over, please send a hand-written thank you note.  It’s only polite.
3. Volunteer.  You are probably very limited on time, but if you’re really interested in another practice area, it may be helpful to get some unpaid experience.  If you’re working and loving it without getting paid, it’s a good sign that you are probably well suited for that type of work.   Plus, you’re gaining valuable experience to add to your resume!

Attorneys 7-12 years

OK.  You’ve been around the block and you know what is what.  You’ve probably already decided whether or not you want to continue practicing within your current practice area.  If so, it’s really time to make a move toward senior associate or partner.  If you’re not practicing in the field in which you’d like to practice – what are you waiting for?  You’ve got to get moving.

1. Show off.  If you like your practice area, now is the time to start making a name for yourself in the firm.  Don’t just come into work each day and do what you need to do.  It’s time to step up and do even more – just make sure you’re getting credit.  As uncomfortable as it is to “toot your own horn,”  get tooting.  It’s time that you’re noticed as someone who wants to stick around and become an integral part of the firm.  You are a valuable contributor and you want to contribute even more.  Let this be known!  Show your face at legal events, start making connections and generating revenue.
2. Network, network, network. Don’t like the firm or the practice area?  Time to put it in gear.  You’ve got to start networking immediately.  Join legal organizations that work in your desired practice area.  Go to meetings and talk to anyone who will lend an ear.  Ask questions, and ask for informational interviews.   You need to find out how this new practice area works and what new information you need to learn in order to be viewed as an asset in that new practice area.
3. Start writing and speaking.  If you know exactly where you want to be, it’s time to get your name out there as an expert in that practice area.  There’s really no better way to do this than by getting your name in front of other attorneys.  Writing articles and giving presentations are two ways that other attorneys will begin to view you as an authority in the field.  With each publication and/or speech you give, you take another step toward becoming an expert.

Attorneys 13+ years

I know what you’re thinking.  No.  It’s not too late to change practice areas, firms or careers!  You’ve got a lot of experience, and that goes far.

1. Generate revenue.  If you’re at your dream firm, but not yet a partner, don’t worry.  Becoming partner is only a solid book of business away.  We know all there is to know about building a book of business.  Follow our advice, and you’ll be on your way to partner status in no time.
2. Talk to your peers.  If you’re thinking about changing practice areas, you need to speak to an attorney in that field.  I know, it’s sometimes hard to speak to someone who has less experience as an attorney; but just do it.  (Nike knows all.)  You can learn something every day, even if you’ve been an attorney forever.  Get curious!  Talk to these attorneys about what they do every day.  Write out the skills you have that may be helpful in this new practice area.  Also list some things that you may need to review or learn.
3. Venture out!  If you like what you’re doing but not where you’re working start looking elsewhere. If you’ve got a book of business, you’ll be very interesting to other firms.  If you’re tired of the old grind and want to get out on your own, do it!  It’s scary, but you’ve got the experience you need with at least 13 years under your belt.  Think about what lifestyle you want and how moving firms or starting your own will help.

No matter where you’re at on the career ladder, take some time in the next couple of weeks to think about where you want to be and how you’re going to get there.  Write plenty of lists – lifestyle, income required, type of firm, etc. – and let them “marinate.”  In no time, you’ll know exactly where you’re going!  (And, if you still need a little help figuring that out, contact us!)

How are things?  Anything new on the career front?  Are you feeling content, or unchallenged?  If you’re looking for your first legal position, if you’re coming back from an absence or if you’re feeling that it’s time to move on from your current job but you don’t even know where to begin, you’ve come to the right place.  Building a resume is important at any level in your career.  No matter if you are a recent graduate or a senior partner, a resume can be the difference between getting the job and being stuck on a career path that doesn’t excite you. 

Overall, resumes are probably the most important thing for hiring partners at the beginning of a relationship.  After all, resumes are the first impression that any hiring partner has of you.  Please, please make sure that it’s spell-checked and accurate.  Also, even though you’re an attorney and not a graphic designer, you will want to make sure that the format is appealing and easy to read.  (Don’t worry about this one – we’ll give you a few pointers.)  

Tips for all attorneys

1. Spell check.  Seriously.  Do it at least twice, read it three times and let someone else read it at least once.  (Having two additional readers is preferable.)
2. Leave them wanting more.  It’s obvious that you’ll want to include relevant work experience.  However, you don’t have to include details about every motion you’ve ever written or every case you’ve ever tried.  Show a little restraint and leave something for the interview.
3. Format with clarity in mind.  Make sure that the format for your resume is clear.  Stick with one font (two if you must, but that’s it).  Stick with only two font sizes – one for headings and one for everything else.  Make sure that all of your contact information is clear on EACH page of the resume.  Heaven forbid someone would lose the first page, you want to make sure they can still contact you.
4. Personalize the content.  If you know that the hiring partner is looking for someone who has appellate experience, make sure that you elaborate on your years of appellate work.  To save space, maybe eliminate the six-month stint doing family law.  Did the hiring partner go to the same undergrad as you?  I’d highlight your undergrad a little more than normal.

Tips for new attorneys (0-5 years of experience)

1. Mention everything that’s important.  It’s critical to highlight experience you had in law school or during internships.  If you were on the winning trial ad team or editor of the law review, go ahead and mention these accomplishments.  You’ll also want to delve into your experience as an attorney (if any), but relevant experience before you passed the bar is OK, as well.
2. Show off your skills.  Make sure that you highlight any special skills or knowledge you may have to set you apart.  Do you have three years of Westlaw research experience?  Can you speak Japanese?  Obviously, Westlaw experience is crucial.  Many firms love foreign language proficiency – particularly in international firms.

Tips for senior associates (6-12 years)

1. Put your work on top! You’ve been practicing law for awhile, so it’s fine to put your education toward the bottom of the resume.  Hiring partners are more interested in your recent work experience than your undergrad and law school.  It’s still important, but it’s not top-of-the-resume important.
2. List practice areas.  Make sure that you indicate the types of practice areas in which you have experience.  (Keep in mind that you’ll want to emphasize the work most related to this particular job.)  For example, if you’ve gained experience in antitrust, labor and employment, M&A, private equity deals, so state.
3. Describe your clients.  Make sure that the hiring partner understands the type of clients with which you have worked in the past.   Were they fortune 500 companies or family-owned businesses? Also note, if relevant, what the industry is, i.e., health care, technology, etc.  Describe these clients with some specificity, and be sure to point out the clients that may have some relevance to this job opening.
4. List your real world experience.  Here’s where you get to brag about what you’ve accomplished.   Note if you’ve taken and defended depositions, drafted and argued, any trials that you’ve worked on, second-chair experience, etc.  On the transactional side, note if you’ve handled due diligence, handled securities or M&A work, etc.
5. Incorporate a list of speaking and writing accomplishments.  Be sure to include list of public speaking you’ve done on your practice area or publications you’ve written about your area of expertise. 
6. Include extracurricular activities.  Make sure that you list all professional associations to which you belong.  Listing other professional or community involvement can be important, as well.

Tips for partners (13+ years)

1. List your managerial and administrative abilities and contributions.  You’re more than just a mere attorney, you’re one of the bosses.  The other bosses want to know how you can perform in that role, as well.
2. Brag about your success.  The firm’s hiring partner will definitely want to know, with some detail, about your client development and your revenue generation abilities.  Be sure to be as thorough as possible here.  This is a very important part of your resume.
3. Attach relevant lists.  If you’re a litigator, attach a list of representative cases you’ve handled.  If you’re on the transactional side of things, be sure to attach a representative corporate transactions list.  
4. Prepare and have a general business plan at the ready.  The attorneys at the firm will want to know how you can help grow the business.  Include a brief business plan for how you will contribute.  (Not sure about this?  Glad you asked.  We’ll be writing a post about this soon.  Check back for details.)

So, go forth and interview!  Did we leave something out?  Please do not hesitate to contact us.  We’re happy to help get your career on the right path!

Daniel J. Herling, an attorney at Keller & Heckman LLP in San Francisco shares a little of his insight on this very new, and very promising, legal trend in California.

I’m seeing an across-the-board increase in activity in all regulatory agencies – they are ratcheting up enforcement.  I’m noticing more subpoenas going out (for example,  OSHA is more aggressive and FDA is implementing more recalls as is the CPSC). 

Keller & Heckman is involved in both the regulatory and litigation aspects.  There’s been talk for some time, but I’m starting to see increased activity on the part of the Government.  The Obama administration is certainly having a different attitude toward regulation than prior administrations. 

As a result, Keller & Heckman, has felt the need for more litigation assistance due to these shifts, and the San Francisco office has grown accordingly.  (In fact, the office is currently seeking a litigation partner who can sustain himself/herself with portable business.  (Speak with Delia at Swan Legal Search regarding details about this opportunity. )

In addition to growth in California, our Washington D.C. office has also been busy addressing various recall issues on the regulatory side.  Often the regulatory issues evolve into litigation.  For example, recently a client had to take some product off the shelves at a major box store and sought relief from its supplier.  The supplier refused, and a complaint was filed in Federal court and ultimately resolved through mediation. 

I predict more work on the horizon in light of the Green Chemistry Initiative which is supposed to go in to effect in California shortly.  Unlike Prop 65, which had a specific enforcement regimen, the GCI has no mention of enforcement in the statute.  Issues such as what is a “chemical of concern” will inevitably lead to litigation.  A lot it will depend upon the new California Attorney General, and her/his views.  B&P Section 17200 may also create opportunities  for a private attorney general  actions pursued under.  These are, indeed, interesting times.

Dan is a partner at Keller & Heckman and recently had a major success in a breach of contract and lack of good faith and fair dealing case.  Founded in 1962, Keller & Heckman’s nationally-recognized litigation attorneys represent clients’ interests before federal and state courts, and regulatory and industry sanctioned bodies.  The firm has offices in Washington, D.C., Brussels, San Francisco and Shanghai.

Pitchbook notes steady growth in both types of exit strategies in the fourth quarter of 2009 and the first quarter of 2010 relative to prior periods.  Similar activity is being seen in the venture capital industry; the first quarter of 2010 has already matched the eight venture backed IPOs in all of 2009.  In terms of industries that have seen the greatest growth in the number of IPOs, it’s been technology, financial and real estate.

With Los Angeles being home to large banking/financial and real estate industries, it is foreseeable that law firms servicing these types of capital markets in Los Angeles are witnessing some of the rewards of this increased market activity.  It is hard to foresee whether intervening events like Greece’s financial woes will curtail activity, but there is a general sense in the field that the positive momentum may very well continue.

Post by Alex Shukhman, attorney at Goodwin Procter LLP in Los Angeles.

Above all else, don’t give up!  We know that this current market will turn around.  Stay positive!

If you have specific questions about your legal career path, please do not hesitate to contact us.  We’d love to help!

Remember that a firm will often save money in the long run by using a recruiter, because recruiters will match the attorney with the firm.  This eliminates a lot of attorney turn-over and the costs that result. 

Interested in using a recruiter for hiring at your firm?  Contact us!  We have 15 years of experience hiring for all types of law firms.

It’s true, after two long years of bad news, it appears that the legal market may be turning around.

We’ve noticed “a very strong and rapid uptick in associate hiring” recently, and we couldn’t be happier!