Welcome to the April 2022 Edition of Lawyer Monthly! Our cover feature for April focuses on the Russian invasion of Ukraine and its fallout for the legal sector one month following its launch. Many of the world’s largest law firms are making an exit from Russia, yet others are choosing to continue doing business there. On page 12 we analyse the emerging legal environment and firms’ justifications for their actions. This month we are also fortunate enough to feature several lawyers of distinction in the My Legal Life section. Steven Florendine and Helen Hatton, specialists in concussive injuries and offshore crime, speak with us about their respective areas of expertise in rich detail. You can find their stories on pages 16 and 44. We also hear once again from IFO Group – this time with David Prince, who on page 78 offers invaluable advice on how legal counsel can respond to catastrophic accidents. Our other cover stories round out these areas of interest by returning the focus to the legal sector itself. Chad Volkert explores the surge in demand for alternative legal services and what it portends on page 20, while highly accomplished defence attorney Sam Bassett discusses how one can excel in his chosen career on page 24. Beyond these stories, the April edition also includes a monthly roundup of legal news and lawyer moves, in addition to a plethora of articles covering topics as diverse as immigration law reform, international child relocation and Sino-Canadian investment deals. Whatever your sector, you are sure to find something of interest in this month’s magazine! We hope that you enjoy this edition. Approx. 302,000 net digital distribution. LAWYER MONTHLY©2022 Universal Media Limited Lawyer Monthly is published by Universal Media Limited and is available on general subscription. Readership and circulation information can be found at: www.lawyer-monthly.com The views expressed in the articles within Lawyer Monthly are the contributors’ own. All rights reserved. Material contained within this publication is not to be reproduced in whole or in part without prior permission. Permission may only be given in written form by the management board of Universal Media Limited. Universal Media Limited: PO Box 17858 Tamworth, B77 9QG, United Kingdom Tel: 0044 (0) 1543 255 537 Follow Us: @lawyermonthly @LawyerMonthly @lawyermonthly linkedin.com/company/lawyer-monthly - EDITOR Oliver Sullivan editor@lawyer-monthly.com PRODUCTION MANAGER Emma Tansey production@lawyer-monthly.com - A Note From the Editor Oliver Sullivan Editor - Lawyer Monthly LM EDITOR'S NOTE 3 APR 2022 | WWW.LAWYER-MONTHLY.COM
INSIDE THIS ISSUE Contents 4 WWW.LAWYER-MONTHLY.COM | APR 2022 WORLD REPORT 6. Monthly Round-Up 8. Lawyer Moves - Recent Appointments FRONT COVER FEATURE 12. Law Firms in Russia Who is Leaving, Who is Staying? MY LEGAL LIFE: 16. Providing Compassionate Service for Brain Injury Clients Steven Florendine, Davidson & Williams 20. What Do Alternative Legal Services Have to Offer? Chad Volkert, Protiviti 24. The Making of an Exceptional Defence Attorney Sam Bassett, Minton, Bassett, Flores & Casey 28. A Guide to Navigating Franchise Disputes Jason Power, Franchise.Law 32. The Journey of a Sino-Canadian Commercial Lawyer Hong Guo, Guo Law Corporation SPECIAL FEATURES 36. Quincecare Duty Expanded: What Are the Implications for Banks? 38. How Omnichannel Legal Services Meet Clients’ Needs Post-Pandemic 40. What Other Options Do You Have After Getting a Law Degree? EXPERT INSIGHT 44. The Modern Landscape of White-Collar Crime Helen Hatton, Central Associates Limited 48. How ‘Citizenship By Investment’ Works Jean-François Harvey, Harvey Law Group 52. Enforcing Non-Compete Clauses in the Post-COVID Era Ruofei Xiang, Mazzola Lindstrom LLP 56. What is the State of US Transgender Employment Rights? Shawn Twing, Mullin Hoard & Brown 60. Governing Law for Cross-Border Contracts: Why is Swiss Substantive Law Such an Attractive Choice? Andrea Haefeli, Walder Wyss Ltd 64. Canadian Immigration Processing Times: Will the Improvements Be Enough? Maria Campos, Lawyer & Notary Public 68. The Complexities of International Child Relocation Carly Mirza-Price, Mills Oakley 70. Enshrining Corporate Governance in Your Business Plan Fuasto de Angelis, FdA Law Firm THOUGHT LEADER 74. General Counsel: Delivering Cross-Border Compliance in Large Organisations Alison McCullough-Butchart, Qualico Developments Canada Ltd Chad Volkert What Do Alternative Legal Services Have to Offer? 20
INSIDE THIS ISSUE 5 APR 2022 | WWW.LAWYER-MONTHLY.COM EXPERT WITNESS 78. Workplace Safety Management: How to Respond to a Catastrophe David Prince, IFO Group 84. What Are the Legal Roles of an Aviation Expert? Captain Chris Turner, Axten Aviation Ltd 94. Expert Valuation of Securities Fraud Damages Donald May, DMA Economics LLC TRANSACTIONS 96. What’s Happening in the World of M&As and IPOs? David Prince Workplace Safety Management: How to Respond to a Catastrophe Sam Bassett The Making of an Exceptional Defence Attorney Steven Florendine Providing Compassionate Service for Brain Injury Clients 78 24 16 The Modern Landscape of White-Collar Crime Helen Hatton 44
MONTHLY ROUND-UP On 25 February, President Joe Biden nominated Judge Ketanji Brown Jackson to the Supreme Court, elevating a Black woman to the country’s highest court for the first time in its history. The Sackler family, the founders and owners of pharmaceutical company Purdue Pharma LP, have reached an agreement with a group of attorneys general to pay up to $6 billion in cash to resolve widespread litigation claiming they fuelled the US opioid crisis. Image by Wikicago - Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=91982907 KETANJI BROWN JACKSON BECOMES FIRST BLACKWOMAN ON US SUPREME COURT SACKLER FAMILY TO PAY $6BILLION FOR ROLE IN USOPIOIDEPIDEMIC Jackson is slated to succeed Justice Stephen Breyer, the most senior jurist in the Supreme Court’s threemember liberal wing. Breyer is set to retire this summer, at the end of the court’s current session. Jackson presently sits on the US court of appeals for the DC circuit, having won bipartisan approval during her Senate confirmation last year when she was elevated from the federal district court in the District of Columbia by the US president. A graduate of Harvard College and Harvard Law School, Attorneys general for eight US states and the District of Columbia, who blocked a previous settlement involving a $4.3 billion cash payment, announced the deal following several weeks of mediation with the Sackler family. The Sacklers agreed to pay a minimum of $5.5 billion in cash to be used to help ease the US opioid crisis. According to HHS.gov figures from 2019, an estimated 10.1 million people aged 12 or older misused opioids in the Jackson clerked for Breyer during the Supreme Court’s 1999-2000 term. Highlights of Jackson’s legal career thus far include her work as a public defender and her 2012 nomination to serve as a judge for the United States district court for the District of Columbia by President Obama. 25 February marks two years to the day since Biden pledged to make history by nominating the first Black woman to the Supreme Court. Biden made his vow during the 2020 primary debate in South Carolina. LM past year, with an estimated 9.7 million people misusing prescription pain relievers. In a statement, the Sackler family said that they “sincerely regret” that OxyContin — an opioid painkiller produced by Purdue Pharma — had “unexpectedly became part of an opioid crisis.” The Sacklers said that, while they acted lawfully, a settlement was the best way to help resolve the US’ public health crisis. LM 6 WWW.LAWYER-MONTHLY.COM | APR 2022
MONTHLY ROUND-UP P&O Ferries, which fired over 800 workers without notice, has admitted to breaking UK employment law. On 21 March, a court in Moscow rejected a bid by Meta Platforms, owner of Facebook, to have extremism charges against it dismissed in a case that could see the US social media giant forced out of the Russian market. TENSIONS BETWEEN META AND RUSSIANCOURT CONTINUE OVER “EXTREMISM” CASE According to Russian news agency TASS, Meta had requested more time to prepare for its legal position and called into question the court’s authority to ban its activities. Meta’s lawyer, Victoria Shagina, said that the company was not carrying out extremist activities and was against “Russophobia”. In a statement last week, Meta global affairs President Nick Clegg said, “We are now narrowing the focus to make it explicitly clear in the guidance that it is never to be interpreted as condoning violence against Russians in general.” Russia, however, has already banned Facebook for restricting access to Russian media. Its Instagram platform was blocked following Meta’s announcement that Ukrainian social media users were permitted to post messages encouraging violence against Russian President Vladimir Putin after he launched an unprovoked attack on Ukraine on 24 February. President Putin, however, calls the war in Ukraine a “special military operation” and says the use of force in the country is “justified”. Prosecutors in Russia now want to label Meta an “extremist organisation”. LM BRITAIN’S P&O FERRIES ADMITS BREAKING EMPLOYMENT LAW Chief executive Peter Hebblethwaite was urged to quit his position at the British ferries operator after acknowledging there is “absolutely no doubt” that the company should have consulted with trade unions prior to its decision. P&O Ferries replaced its workforce with cheaper foreign agency workers in March and has since faced a wave of backlash. Explaining P&O’s decision not to consult with trade unions, Hebblethwaite told a joint session of the Commons’ transport and business select committees that the company “assessed that given the fundamental nature of change, no union could accept it and therefore we chose not to consult because a consultation process would have been a sham […] We didn’t want to put anybody through that […] We are compensating people in full and up-front for that decision.” When asked whether he was concerned that he had breached his legal obligations as the company’s chief executive, Hebblethwaite said: “I completely throw our hands up, my hands up, that we did choose not to consult.” Following the hearing, Labour MP Darren Jones, who serves as Chair of the House of Commons Business, said that Hebblethwaite should be “fined, struck off and prosecuted.” LM 7 APR 2022 | WWW.LAWYER-MONTHLY.COM
LAWYER MOVES
LAWYER MOVES PGMBM has announced the arrival of Alicia Alinia as partner and its new Chief Operating Officer for the UK and Europe. An already accomplished law firm leader, she is slated to provide strategic leadership for PGMBM across Europe, working closely with the firm’s founding partners and C-Suite leadership team. Alinia joins from Slater and Gordon, where she served as the firm’s Chief People Officer and Managing Director of Consumer Legal Services. In this role, she led the business’s overall strategic direction and operational management. PGMBMGlobal Managing Partner TomGoodhead welcomed Alinia’s arrival. “Alicia’s experience as a legal leader speaks for itself, and her appointment comes at an exciting time for the firm,” he said in a statement. “In under four years, we have grown PGMBM into what I believe to be the world’s most incredible law firm. I am so proud of the groundbreaking work we are undertaking every day, and I am thrilled to welcome Alicia as we continue that journey.” Alinia also spoke on her enthusiasm to be joining the firm: “I am delighted to be joining PGMBM during an exciting time as we continue to grow and provide access to justice through the delivery of collective redress globally. The importance of equality before the law is the reason I joined the legal profession. “Having seen the incredible work by the firm from representing indigenous communities to pursuing large scale environmental class actions to protecting consumer rights in the digital space, it is clear that PGMBM is the world leading firm in the collective redress sphere. PGMBM have constantly found innovative ways for clients to have their voices heard and to ensure that globally important causes are championed in courts across the UK, Europe and the USA.” PGMBMPoaches COO from Slater and Gordon Dechert has announced the hire of Judith Seddon, one of the UK’s leading white-collar practitioners, as a partner in its London office. Seddon graduated from King’s College, London, with First-Class Honours and went on to receive an LLM from Yale and a Bachelor of Civil Law from New College, Oxford. She has a history of representing individuals, financial institutions and corporate clients in complex and high-stakes SFO and FCA investigations in the UK. She is also the only partner to be ranked in tier one by Chambers UK in both Financial Crime: Corporates and Financial Crime: Individuals. “Judith is well known as an exceptionally talented lawyer,” commented Dechert chair Andy Levander. “Dechert has one of the world’s elite whitecollar and investigations capabilities; a partner of Judith’s stature is a superb addition to our team.” Seddon stated: ““Dechert is a disputes powerhouse on both sides of the Atlantic and I am excited by the opportunity to build on this foundation and further strengthen Dechert’s special place in the market. I was drawn to Dechert by its long-standing commitment to global white-collar and investigations work and look forward to joining my new colleagues.” Seddon’s appointment marks the fourth high-profile female whitecollar partner to arrive at Dechert’s global offices in recent years. Her hire follows Maria Sit in Hong Kong, Clare Putnam Pozos in Philadelphia and Hartley West in San Francisco. Jennifer Bennett has joined Jones Day’s intellectual property practice in its San Francisco office, the law firm announced this month. Bennett brings extensive experience in advising global technology and life sciences companies in complex high-stakes patent and trade secret litigation. This work includes jury trial and litigation experience in patent disputes concerning biopharmaceuticals, medical devices, optical networking technologies, machine learning and plants. Jurisdictions in which she has experience include US district courts in California, Texas, Delaware, Washington and the International Trade Commission. Bennett is also versed in international arbitration relating to intellectual property in healthcare claim adjudication. Outside of patent litigation, she has also advised on transactions involving complex technologies, particularly related to the aforementioned technological areas. A graduate of the Santa Clara University School of Law, she has written widely on patent issues and patent issues and spoken often at IP summits. Aaron Agenbroad, partner-in-charge at Jones Day’s San Francisco office, welcomed Bennett’s arrival. "Jennifer is well-connected in Silicon Valley, and as IP matters continue to become more complex, her background makes her a terrific asset for our clients,” he said. “We are thrilled to have her as a member of our Northern California team." Dechert Appoints LeadingWhite-Collar Partner to London Office Jones Day Adds New Partner to San Francisco IP Practice 10 WWW.LAWYER-MONTHLY.COM | APR 2022
LAWYER MOVES Also in March, in addition to the appointment of Jennifer Bassett, Jones Day announced that Yvonne Chan has joined the firm as a partner in its business and tort litigation practice, based out of its Boston office. Chan’s practice focuses on business and commercial litigation matters in addition to government and internal investigations. Her past experience involves working with clients across a number of highly regulated industries, including financial institutions, technology and life sciences companies and private equity firms. Chan is also highly experienced in working with colleges and universities on disputes relating to student affairs, wrongful death and personal injury. Chan earned her undergraduate degree at Stanford University before going on to study law at Harvard Law School. She often writes on current and emerging legal issues that affect higher education institutions and frequently engages in pro bono matters related to wrongful conviction. “Yvonne is talented, experienced and is a tremendous addition to our firm’s deep litigation bench,” said John Majoras, co-leader of Jones Day’s business and tort litigation practice, in a statement. “Her versatility across a broad business and commercial litigation landscape will be valuable to our clients around the world and I am pleased to welcome her to Jones Day.” Colleen Laduzinski, partner-in-charge at the firm’s Boston office, also welcomed Chan to the firm. “Yvonne will help us deepen our litigation capabilities, expand the cross-office teams we assemble to handle trials, and increase our visibility to clients here in Boston,” she said. “Her experience in the life sciences and financial services industries are especially valuable to our local team, as is her deep experience representing colleges and universities in the New England region.” Jones Day Gains Business and Tort Litigation Partner Global firm Allen & Overy (A&O) has strengthened its international arbitration wing with the addition of partner David Herlihy. Herlihy is a specialist in investment arbitration and international law, and joins A&O’s London practice rom Skadden, Arps, Slate, Meagher & Flom LLP (Skadden). Herlihy brings 20 years of experience in international arbitration with a focus on international commercial arbitration, public international law and investment treaty arbitration. He is particularly experienced in handling disputes relating to renewable energy, telecoms and the technology sector, having worked on a number of high-stakes disputes around the globe involving competition laws and international taxation. Among Herlihy’s most high-profile arbitrations are his representation of Vodafone International Holdings BV in its suit against the Republic of India over its attempt to impose a retroactive $5.5 billion withholding tax liability, wherein the company won a landmark victory. Representing the Republic of Cyprus, he also beat investment treaty claims of more than €1 billion arising from the Eurozone financial crisis and led NextEra’s successful claim against Spain under the Energy Charter Treaty, winning an award of €300 million. During his 20-year tenure at Skadden prior to joining A&O (including nine years as a partner), Herlihy was a founding member of the firm’s European LGTBQ Affinity Network and its London Diversity Committee. Herlihy is set to commence his new duties from early April. He will be the third hire to A&O’s London practice this year, following the appointments of finance litigator Michael Godden and fraud litigator Andy McGregor in January. Allen&Overy Bolsters International Arbitration Practice With Partner Hire 11 APR 2022 | WWW.LAWYER-MONTHLY.COM
LawFirms in RUSSIA Who isLeaving?Who isStaying? WrittenByOliver Sullivan
On 24 February, Russian President Vladimir Putin ordered ground forces intoUkrainewith the stated aim to “demilitarise and denazify” the nation. The conflict has since resulted inmore than a thousand civilian deaths, numerous allegations of war crimes and a new refugee crisis asmore than 10millionUkrainians are estimated to have been displaced, with 3.9million leaving the country. As thematerial damages and loss of life continue tomount, global industry has come under pressure to take amoral stance in a historically unprecedentedway.
WWW.LAWYER-MONTHLY.COM 14 Black Swan Event The international community has roundly condemned the unprovoked invasion and levied wide-ranging sanctions aimed at gutting the Russian economy and leaving the country unable to fund its war effort should this not serve as an adequate deterrent. In addition to government measures, significant pressure has been placed on international businesses to cut ties with Russia. Shell, Apple, Ford, FedEx and a host of other multinational companies have since announced their withdrawal from the country, often at significant cost. These responses have not been unanimous, however. Several major organisations have opted to continue their operations in Russia, whether in whole or in part, for the foreseeable future. Justifications offered have typically related to contractual obligations or moral duties to existing customers in Russia. Others have simply remained silent. The above is true for the legal sector as well. Law firms have been slower than most in announcing the actions they will take in response to the violence, with most official statements arriving weeks after hostilities were opened. Now, one month on from the beginning of the invasion, we have gained a more reliable picture of where law firms stand in relation to the ongoing conflict. Unified Condemnation More than 20 international law firms operated in Moscow prior to 24 February. As of April, it appears that few if any will continue to maintain a presence there. Linklaters became the first major UK firm to announce its departure from Russia on 4 March. “Russia’s invasion of Ukraine is reprehensible and it is right that we stand together in condemning it,” the firm stated. “We will not act for individuals or entities that are controlled by, or under the influence of, the Russian state, or connected with the current Russian regime, wherever they are in the world.” As of the time of writing, each of Linklaters’ fellow ‘Magic Circle’ firms has issued statements to a similar effect. By 10 March, Allen & Overy, Clifford Chance and Freshfields had each announced their intent to withdraw. Other departures included Dentons, DLA Piper, Norton Rose Fulbright, Hogan Lovells and White & Case. To answer our titular question, it appears that every international firm in Russia is leaving, at least in a physical sense. The degree of firms’ scaling-down of operations, however, has not been universally consistent. Several have opted to close office locations but continue to work with Russian clients, sometimes including those that are sanctioned. For instance, while Latham & Watkins has elected to close its Moscow office alongside its peers, owing to “the violence in Ukraine and the needless human suffering taking place”, it has stopped short of ending its counsel of VTB Bank – Russia’s secondlargest financial institution and the subject of sanctions by the US and other governments. Several others have also opted to close physical locations but continue to work with Russian clients, some of which are currently under sanctions. These firms, however, appear to be in the minority, and generally eclipsed by highprofile leavers taking a more holistic stance. White & Case caused a stir with its swift move to drop its representation of state-affiliated Sberbank. Meanwhile, Baker McKenzie – the longest-surviving global law firm in Russia – has become a front-runner in the western legal community’s backlash against the Kremlin with its own measures. The firm declared an end to it 33-year tenure in the country and affirmed that it would not act for regime-associated clients “anywhere in the world.” Law firms have been slower than most in announcing the actions they will take in response to the violence, with most official statements arriving weeks after hostilities were opened.
WWW.LAWYER-MONTHLY.COM 15 The Impact of Sanctions It is more difficult for law firms to cease their operations in a country than it is for most companies. Unlike other multinational businesses, firms cannot simply cut off support to local outlets with the potential to return when the environment has changed. Since the fall of the Soviet Union, firms have spent decades building Russian client loyalty that will undoubtedly evaporate if they pull their national presence. Closing an office can be expected to have a similar effect, as lost local staff and the personal goodwill they have earned will not be easily replaced. And of course, this is to ignore the obvious legal obligations that a firm has to its existing clients. But firms that might have been willing to “ride out” the reputational damage rather than give up their Russian operations may simply have their hand forced by sanctions. Particularly in the UK, there has been a surge of new amendments to sanctions legislation (and an increase in the number of entities to which they apply), with a potential risk of regulatory action and criminal prosecution for firms and individuals found to be in violation. With a significant new range of sanctions inhibiting firms from receiving payment from or issuing payment to named individuals and organisations, the attraction of doing business with Russia is sure to diminish even for firms willing to risk a knock to their reputations. It remains to be seen just how far the list of sanctioned entities will ultimately extend, but it is a safe bet that it will not soon stop growing. The Sector Moving Forward Beyond merely sitting out the war in Ukraine, we can expect to see many familiar firms become involved in legal action against Russia over its military activities. Some have already done so in the employ of Ukraine: acting on the government’s behalf, Covington & Burling filed a claim at the International Court of Justice in the early days of the conflict, demanding that Russia cease its attack. Ukrainian President Volodymyr Zelenskyy has also hired US firm Morrison & Foerster to counsel his office on US, UK and EU sanctions regimes, and attorneys from Los Angeles-based Quinn Emanuel Urquhart & Sullivan have been brought on to represent Ukraine before the European Court of Human Rights in a case accusing Russia of human rights abuses. Other firms are assisting Ukraine by engaging in charitable support. Norton Rose Fulbright has also made public its intentions to collaborate with global partners to raise funds, “as well as providing pro bono support to those Ukrainians and others who are being forced to relocate”. Its peers have followed suit, with DLA Piper stepping in to run an advisory service for Ukrainians seeking refuge in the UK. We expect to hear further stories of charitable work on behalf of Ukraine in the months to come. It is also reasonable to expect that law firms serving Russian clients – particularly sanctioned individuals and organisations – will suffer ever-increasing negative media attention. It is too early to determine the impact of all this upon the Russian economy and the global legal sector, though it is certain to be without precedent in modern history. For the time being, we will continue to report on law firms’ activities in and around both Russia and Ukraine, and continue to hope for a swift resolution to the conflict. It is more difficult for law firms to cease their operations in a country than it is for most companies.
About Steven Steven Florendine joined Davidson & Williams in 2007 and made partner in 2011. With more than 23 years of practice under his belt, he is greatly experienced in the field of personal injury law, with a deep understanding of clients’ circumstances in addition to their injuries. He volunteers on several local and provincial boards and was recognised as a Lawyer of Distinction in 2021. About Davidson & Williams LLP Davidson & Williams LLP was founded in 1885 in Lethbridge, Canada, and today bears the distinction of being Western Canada’s longest-running law firm. Its team of experts covers many areas of law including personal injury, immigration, family, energy, wealth planning and tax. Steven Florendine Partner Davidson & Williams LLP 501 4 St S, Lethbridge, AB T1J 4X2, Canada Tel: +1 403-328-1720 E: steven@dwlaw.pro www.dwlaw.pro
Providing Compassionate Service for Brain Injury Clients APR 2022 | WWW.LAWYER-MONTHLY.COM What everyday difficulties do victims of concussions or other mild brain injuries often encounter? This question would need a weekend seminar to offer a full response. It is a fog of symptoms that often slowly descends on those who have sustained injuries to their brains. It can be a fine mist of only a few symptoms that creeps into almost every aspect of their lives: mild headaches, mild nausea and vomiting, and maybe some dizziness. Or occasionally it can be so thick with symptoms that the strongest lighthouse cannot help a person find safe harbour. In addition to headaches, nausea, vomiting and dizziness, all of which can be relatively short-lived in mild concussions, individuals can also experience many more serious and sinister problems, ranging from memory impairments to damage to the pituitary gland. Those who have encountered a thicker fog of symptoms can expect to experience additional difficulties with short or long-term memory issues. The effects of this form of impairment cannot be overstated. Many clients are forced to resort to unimaginable reliance on their cell phones or postit notes just to be able to get through an average day without missing their appointments, to pay their bills, or to meet their loved ones. An inability to concentrate or focus is also often found in the haze. This can occur during everyday conversations, when that next word in an already formed sentence is just occasionally lost. Or it can be so severe that conversation is almost avoided entirely. blow or jolt to your head or body, which is exceptionally common during a motor vehicle collision. All anyone needs to do is watch any slow-motion video of a lowspeed collision to witness how we all tragically become bobbleheads. How can a brain injury go unnoticed in an initial diagnosis of a sufferer’s medical condition? In my experience, several common myths continue to persist, even among some primary medical care providers. First, it is not true that you must lose consciousness to sustain a concussion. Concussions are associated with and because of altered consciousness. The second pernicious myth that seems to cause a lack of proper diagnosis is being asked “Did you strike your head?” This question is asked often, presumably because the questioner believes striking your head is a necessary condition to suffer a concussion. Again, the literature is clear: you do not have to strike your head to sustain a concussion. The forces behind whiplash (very aptly named) are easily sufficient to produce concussions, and all too often do. Can you tell us a little about the proportion of your clients who have suffered mild or severe brain injuries? Over the course of my 23-year career, the vast majority (at least 70%) of our clients who have been in a motor vehicle collision sustained some degree of a mild traumatic brain injury (mTBI), commonly known as a concussion. Tragically, many of these people are unaware of that potentially life-long problem until we first sit down with them to learn of the constellation of symptoms they have experienced since the collision. Why is it that brain injuries are so prevalent among those who have suffered collisions? Motor vehicle collisions are the second leading cause of brain injuries, behind falls. This is not surprising considering the number of people driving and how easily collisions produce pernicious injury. According to the Centers for Disease Control and Prevention, brain injuries are typically caused by a violent MY LEGAL LIFE - STEVEN FLORENDINE Concussions are a common result of accidents involving injury to the head, yet are frequently misunderstood and even trivialised. Even an apparently mild concussion can have life-altering consequences. Davidson & Williams partner Steven Florendine tells us more about the subject, and about the importance of building trust and compassion with injured clients and their loved ones. 17
Fatigue can be an enormously complicating issue when attempting to navigate through the fog. Many people are fatigued despite having what they believe to have been a good night’s rest. They report always being tired despite sleeping more than they are accustomed to. Tiredness can escalate in frequency and severity and is accompanied by some degree of insomnia. Many people suffering from post-concussion syndrome (the lingering effects of this horrible injury) experience some degree of this condition too. They either cannot get to sleep easily or, once asleep, cannot stay asleep. The failure to get sufficient restorative sleep simply exacerbates all the symptoms they were suffering from the days and weeks before. In extreme cases, the force of a collision can even damage or “flatten” a person’s pituitary gland. This tiny gland, when damaged, cannot produce hormones like it once did. A lifetime of growth hormone supplements can be insufficient to help. Without effective treatment, a person can easily sleep at least 18 hours just to get through the remaining six hours in a day. Photo- or phonophobias also often accompany mild traumatic brain injuries. Light – especially ubiquitous fluorescent lights – routinely produce migraine headaches that can last for days. Loud noise can also produce headaches which leave these brain-injured people heading straight for quiet and dark rooms, which sadly seem representative of what their lives have become. Mood issues are also commonly experienced as people navigate through the haze. Their loved ones often comment that the injured person is simply not the same person as they were before the collision and resultant brain injury. They are more irritable, moody and angry. An individual who was once a calm, patient person can suddenly have their fuses shortened to mere millimetres. These short descriptions of many, but not all of the constellation of symptoms, hopefully illustrate how life-altering the fog of concussion really is. When a thick fog really sets in, it should be easy to see how it can impact every aspect of a person’s life. From a student’s inability WWW.LAWYER-MONTHLY.COM | APR 2022 MY LEGAL LIFE - STEVEN FLORENDINE to complete their educational goals to impairment so significant that it affects whether they can manage or keep their jobs and sadly, but all too frequently, keep any of the relationships they once had. Many failed romantic relationships are scattered through the post-concussion landscape once the fog (that does not lift) lumbers on. How should clients be aided while recovering from these? Education, patience, time and certain specific treatments seem to be the best guide those with concussions navigate back to “normalcy”. Once properly diagnosed, a patient with a concussion at least knows why they are struggling. They can then, hopefully, be given sound recommendations for specialists and coping skills to help with their specific symptom-set. But more is required. Much more. Their loved ones should be educated on what to expect from this “new” person in their lives. This step is crucial and almost always overlooked. One of the main problems with those who have sustained a mild traumatic brain injury is that they “look completely normal”. They are not in a cast; they are not utilizing crutches; they do not have any of the blood and gore easily associated with injuries. Yet as we have seen, they clearly are injured – but their injury only manifests itself through the symptoms. 18 How can a personable conversation with the client and their family help in this process? This is an exceptionally important step in recovery, not only for the injured person, but for their loved ones: they are all walking around in the fog. Sadly, only the one with the concussion initially experiences it. Shining the light on what to expect can allow loved ones to also become beacons of light for someone with a concussion. Simply Illuminating what to expect and stressing the need for patience is sometimes sufficient. Letting loved ones know there are reasons why their partner, parent, child, or friend is still laying on the sofa hours later without having “accomplished” anything is helpful. It can defuse the situation from one of accusations and blame to one of understanding. In what ways do these issues become more pronounced when the brain injury is severe? All the symptoms we have discussed so far are ones commonly experienced by people who have sustained a “mild traumatic brain injury” or “concussion”. As serious as many of these symptoms are, most symptoms in a “mild” concussion resolve fairly quickly, with 2 years seemingly the typical end point for recovery. However, some people with a mild concussion will suffer from a lifetime of walking through and with the fog. These are still considered “mild” concussions. Their standard diagnostic tests, including regular MRI and CT scans, will be interpreted as “normal”. Obviously, that does not mean they have not sustained a concussion. The fogs effects will continue to waft through many aspects of these people’s lives as they barely lumber on. When a brain injury is deemed severe, the effects and symptoms are much more pronounced and often are obvious and include death or coma. Shining the light on what to expect can allow loved ones to also become beacons of light for someone with a concussion.
MY LEGAL LIFE - STEVEN FLORENDINE What has motivated your interest in assisting clients with brain injuries? Initially, I just fell into this area of law right out of law school in Texas in 1999. But immediately, I knew this was what I was meant to do. I am fascinated by the medical aspects of injuries, the science of injury and collisions, and the personal interactions with clients. Unfortunately, injury law reared its ugly head several times in a personal way for me. Many members of my family have suffered various injuries, including several that will last a lifetime. These have helped me experience what it is like to be the “loved one” who walks through the fog with the injured person. I have experienced loved ones who have and continue to experience many, if not all, of the symptoms described above. This has helped me immeasurably in understanding intimately what my client’s loved ones go though and to help to have some idea of the pain my clients are going though. Do you have a creed or philosophy that you follow when it comes to delivering compassionate care for your clients? It starts with the idea that this is not just business for us: it is personal. We are “open” 24/7/365. Our client’s problems and symptoms do not only exist Monday to Friday, 9-5. So, we strive to be available to them in some fashion, whether by email or telephone call, at almost any hour and any day. We have often responded to client questions and needs late at night on a Friday or at all hours on weekends. More About Steven Florendine APR 2022 | WWW.LAWYER-MONTHLY.COM 19 What other sorts of injuries do you help clients in overcoming? While a large percentage of our clients have sustained a concussion, it is by no means the only injuries that we commonly help clients with. We see and help with every injury imaginably sustained in vehicle collisions. Vehicle collisions are almost always violent events and cause serious and lasting damage. We commonly see multiple fractures to all limbs, the spine, face, head and torso. Whiplash is also very prevalent. As with brain injuries, all of these injuries have varying degrees of severity. Many seemingly “simple” injuries, often of the whiplash variety, linger and linger and develop into what is known as chronic pain. A separate article could easily be written on the insidious impact of pain that lasts for longer than six months. This condition also leads to varying degrees of reliance on different pain medication, including opioids, which can help or lead to devastating addictions. How do you enshrine compassion as part of the services you offer? Compassion is an essential part of how I have been practising law for more than 23 years. It is often a race for the Kleenex box between me, my staff, and the injured clients and their family. It is not so much something we insist upon in our office; it is more the magnetism between like-minded people. I am drawn to people who are compassionate, who have a strong desire to want to help people who are suffering. Those who are not like this naturally simply do not seem to be drawn to or be able to handle the issues that always accompany injury cases. We are helping people through what is often one of the worst experiences they have ever had or will have. Being able to feel for these people and understand they need help and answers, sometimes at all hours of the day, is what sets us apart.
About Charles Charles ‘Chad’ Volkert is the Global Head of Legal Consulting with Protiviti, a global consulting firm and subsidiary of staffing firm Robert Half, where until recently he served as a Senior District President for Robert Half Legal and Executive Managing Director of Robert Half Consulting Solutions. He is a graduate of the University of Miami School of Law, where he received a degree of juris doctor, and holds a bachelor of arts degree in political science from Furman University. About Protiviti Protiviti’s legal consulting practice provides corporate legal departments and law firms with unique, alternative legal services in the areas of eDiscovery, contract management, information governance, compliance, data privacy, legal department optimisation, M&A solutions, legal technology, managed solutions and in-house legal advisory work to improve productivity, lower costs and mitigate risk for clients. Charles ‘Chad’ Volkert Global Head of Legal Consulting Protiviti 200 E. Broward Blvd, Suite 1600, Ft. Lauderdale, FL, 33301 Direct line: +1 305-790-4193 E: charles.volkert@protiviti.com www.protiviti.com
APR 2022 | WWW.LAWYER-MONTHLY.COM Since then, demand for these types of services has seen a marked increase, with spend on ALSP now approaching $25 billion – an increase of more than 10 times over the last 20 years. This increase also reflects the effects of the financial crisis in 2008-2009, after which corporations began to bring much of their legal work in-house to reduce overall legal costs. In many cases, since they needed nontraditional legal services outside of what was offered by a law firm, they turned to specialist providers to fill any gaps for their legal in-house requirements. At the same time, law firms began to partner with legal consulting firms to tap into their alternative legal services to provide the best options for their corporate clients. You have described alternative legal services in the past as a ‘people’ business. Why is that? Legal consulting firms, including ALSPs, work with corporate in-house legal teams and law firms to identify areas where their specialised offerings and solutions can create efficiencies across various Could you give us a brief overview of what legal consulting solutions and alternative legal services are and how they are designed to assist law firms? Legal consulting practices, including Alternative Legal Services Providers (ALSPs), offer high-demand specialised legal solutions to law firms and corporate legal departments to help improve their productivity, lower their costs and mitigate risk for their clients. The rules pertaining to eDiscovery began to change throughout 2006, which increased the obligations of law firms and corporate clients to provide electronic data for litigation, really accelerated a need for outsourced service providers with legal and technology expertise to help with litigation and the voluminous amounts of electronic data. This data included emails, digitised paper documents, invoices, contracts, etc., that were first maintained on corporate servers and are now stored on cloud-based systems. MY LEGAL LIFE - CHAD VOLKERT What Do Alternative Legal Services Have to Offer? Adjacent to the work undertaken by law firms and legal departments, alternative legal and consulting services have seen incredible growth over the past decade. Chad Volkert, the Global Head of Legal Consulting at Protiviti, tells us more about the explosive growth of these legal sector services and how Protiviti is looking to meet an unprecedented demand. Demand for these types of services has seen a marked increase, with spend on ALSP now approaching $25 billion – an increase of more than 10 times over the last 20 years, according to our research. 21
areas of legal work. iDiscussions with key stakeholders, who often come from executive departments throughout the corporation, are critical so the ALSP can understand the areas of concern and provide effective, tailored solutions that address the root of the issues. We build trusted advisory relationships with the C-suite about what keeps them up at night, what problems they are trying to solve, and their key initiatives for growth. We look at their potential exposure to risk including litigation, compliance programs, legal privacy issues, their IT security concerns, contract management and ways to increase profitability by streamlining work. Our goals are to build long-term relationships and aim to be trusted partners to enhance their business and legal objectives. The consultative approach allows us to create unique, tailored plans for each of our clients. How do legal consulting firms partner directly with lawyers and in-house counsel to optimise their practice? One simple yet important word: teamwork! Here at Protiviti, we provide deep expertise in business, technology and legal advisory services to ensure there is nothing we are not considering in assisting our clients. Within the legal space, that could include focusing on litigation, forensics, legal compliance matters, project management, contract outsourcing and optimising legal work. In our other areas, we could bring experts to bear in business performance improvement, ESG, data security, audit, fraud and investigations and digital transformation. We also provide a level of transparency that is not historically typical in the legal profession, including giving clients access to multiple technology platforms that allows them to review the work our people are doing in real time, at any time. These platforms also include daily and weekly productivity dashboards and key metrics about our performance and the overall objective. WWW.LAWYER-MONTHLY.COM | APR 2022 MY LEGAL LIFE - CHAD VOLKERT We see our services as complementary to those offered by law firms and in-house counsel and actively partner with them to ensure that together we offer the client an efficient, cost-effective approach that maximizes our individual areas of expertise. In many cases, law firms reach out to us before proposing solutions to potential clients, offering our services in concert with their legal expertise as a key differentiator that assists them in winning work. At Protiviti, as part of a wider business consulting firm and with our parent company Robert Half’s talent solutions, we can also recommend and bring additional experts to a client at a moment’s notice at a different cost base compared to traditional firms. During a recent client engagement, we were initially engaged to optimise their legal department contracts system, but on learning that the company was planning to go public, we were able to provide robust consulting expertise in relevant legal, financial and technology areas around taking a company public and quickly identified a full-time lawyer whom they then brought in-house to assist the general counsel in the IPO. Which areas of legal practice are often the most ripe for improvement? How corporations handle their contracts. Many companies are still in the process of transferring from paper to digital records or merging software systems (especially if they are acquiring another entity). We can help smooth and expedite this process. 22 We can also assist more generally in helping companies understand what’s in their contracts and offer advice on remediating them, if necessary. Privacy. This is an area where many companies today need specialised assistance form a legal, IT and compliance standpoint. We provide both data privacy and legal privacy strategies including the legal drafting of privacy processes and work with our clients to locate and secure their data and understand what their vendors may be doing with their data. Investigations. We can go through all of our clients’ documentation to quickly identify risk and fraud issues. Mergers & Acquisitions. We typically work with general counsel and the C-suite on due diligence for M&A matters as well as contract remediation as new systems merge with other CLM’s. Optimising New Technologies. With the proliferation of new technologies available, many companies are unsure of which ones to use or the capabilities of those they already have. We bring data and IT teams to help them optimise the latest technologies for efficiency and cost effectiveness. Why is a holistic approach necessary to the optimisation process? A company may be working with multiple vendors, contacts and price points – an inefficient and costly process for GCs. With a global consulting firm like
MY LEGAL LIFE - CHAD VOLKERT 23 APR 2022 | WWW.LAWYER-MONTHLY.COM Protiviti that includes legal consulting and alternative legal services, we can partner effectively with a law firm or inhouse counsel because the client can find everything they need under one roof – people, processes and procedures. The client deals with one management team responsible for conducting oversight over the whole project and with access to the best expertise. Our team is tasked with finding the most efficient, cost-effective, innovative and up-to-date ways of solving the client’s issues. For the majority of clients, this proves to be a very positive, stress-free approach. How can an over-reliance on new legal tech also be counterproductive? There are many new tech products on the market and they can all sound attractive at first. We can assist clients in understanding if they really need the product, and if they do, we can bring in expert consultants to implement it and help train their people to use. The legal field still remains a ‘people business’ at heart, though; to get to the root of the problems, find the most effective solutions and build longterm trusted relationships, there is no substitute for discussion around the table. Do you feel that alternative legal services present an attractive prospect for new law grads? Yes, most definitely. The alternative legal services industry has been on a steep growth trajectory since 2006. It means that law students are no longer limited to a traditional career path within a law firm or in-house legal department. Instead, they can stay in the legal space and enjoy the challenges offered by consulting-based work, which includes continuously meeting new people, building relationships, frequently working on new projects and being tasked with solving meaningful business issues. What first sparked your interest in legal consulting and alternative legal services? I have always had a passion for people and providing solutions, especially related to the legal world. I knew midway through law school that I wanted to be involved in the legal space, but most likely on the business side. I have worked for the same organisation (first at Robert Half, now at Protiviti) for 23 years, as the company has afforded me the opportunity to evolve and rapidly grow our practice. It is fantastic to be able to work closely with extraordinary clients, including lawyers and business leaders, around the world to enhance their companies. I am energised each day by being part of the legal world, and I am always looking forward to collaborating with my colleagues, in-house counsel and law firm managing partners or practice leaders to solve client problems in a constantly changing and challenging business environment. What do you foresee for the future of legal consulting including alternative legal services? It is an exciting time to be in the legal consulting and ALSP field. The dynamic environment in which we operate means that new opportunities emerge arise all the time. For example, during the last couple of years, we have assisted many government agencies with managing their COVID-19 relief efforts and related legal work. Other “new” areas are the increasing focus on legal privacy issues which have presented opportunities for us to support companies needing to improve that part of their business. Corporations are increasingly realising that outsourcing their legal needs can provide access to outstanding legal talent, increase transparency in the work being done by experts in specific areas and reap immediate bottom-line results. At the same time, law firms perceive that alternative legal service providers can bring a depth of legal expertise in key areas that significantly benefits their clients in partnership with the law firm’s invaluable legal advice. We have every reason to think that the current rate of growth will not slow down any time soon. More About Chad
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