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Staying in the technology race, avoiding protectionist pitfalls

It is vital for law firms and in house counsel that they are at the forefront when advising on the specifics and legalities of the technology supply chain, which increasingly relies on mining raw materials for use within the manufacturing process of ‘smart’ products. However, an acute awareness of the barriers is also essential.

As such, Gowling WLG’s Protectionism 2.0 Report highlights how protectionist domestic policies from country to country can stifle the commercial overseas collaboration opportunities that technology offers.

Given the increase in protectionist policies, and the inherent link that exists between these and mining essential raw materials, it has never been more important that in house teams work closely with their advisers to anticipate market changes and implement strategies to manoeuvre through what can be difficult events and circumstances.

What is becoming evident, as set out in the report, is that there is a startling correlation between countries that pursue digitally protectionist policies (laws that prevent the overseas collaboration that is needed for technology to properly develop) as well those that are protectionist in relation to their natural resources – in particular China, Russia, India, Vietnam, Argentina and Turkey – six key global players in both areas of the economy. Given that countries like these are the very same which house the essential raw materials that need to be mined to fuel the development of technology, it is crucial to understand how to anticipate the impact of such behaviour on the technology supply chain.

General Counsel could be forgiven for focusing more on the operational and trading aspects relating to the existing uncertainty surrounding Brexit and global trade – and simply seeing digital protectionism as a side-line issue to focus on at a later date. This would be a mistake, given that these measures pose as much a threat to international trade and development as the more traditional tools of trade protectionism that seem to be most in focus at present.

Not only do the identified countries above have a strong track record in imposing trade barriers and tariffs on imports, they also have a high number of restrictive data laws and large deposits of the vital raw materials needed to make smartphones, connected devices and batteries for electric vehicles.

While this is happening in real time, many technology focused brands – focused on the manufacturing side of the industry – may not yet have anticipated how this will affect their sourcing and subsequent supply chain partners and processes. This makes it even more important that General Counsel communicate the effect of this on the output of their businesses in order to assist internal relationships or indeed, using the foresight of their selected legal advisers.

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Exclusive: A lawyer’s guide to keeping it professional on social media

In today’s environment, social media allows people to instantly share their opinions with the world. However, given the many heated issues that dominate our national discourse, there can be a tendency to post (or tweet) in anger or passion, which can lead to regrets later.

This risk is especially dangerous for attorneys. While attorneys may sometimes view their presence on social media to be in a “personal” capacity, the reality is that the line between personal and business can be blurred, or may not exist at all. In particular, with respect to an attorney’s ethical obligations, it may not be a very effective defence for an attorney to claim that she was acting in her personal capacity, and not as a lawyer, when she violated an ethical rule.

Recognising the rise of these issues in the age of social media, the State Bar of California issued a Formal Opinion in 2012 that addressed the interplay between postings on a supposedly personal social media page and the ethical rules governing attorney advertising. State Bar of California Formal Op. No. 2012-186. At issue were certain posts on an attorney’s personal social media page that highlighted the successes the attorney had on other cases, such as “Another great victory in court today! My client is delighted. Who wants to be next?” The California Bar concluded that, even among posts relating to the attorney’s personal life, such posts and others constituted the solicitation of clients or otherwise “concern[ed] the availability for professional employment,” and thus were required to comply with the rules for attorney advertising set forth in the California Rules of Professional Conduct.

Another potential issue exacerbated by the rise of social media is the potential for “positional” conflicts. Such a conflict may typically exist where, for example, an attorney argues for a certain interpretation of a statute in one lawsuit because it is in the best interests of one client, but then at the same time argues for the opposite interpretation of the same statute in another lawsuit on behalf of a different client. Comment 6 to Rule 1.7 of the California Rules of Professional Conduct (as effective Nov. 1, 2018) provides that such circumstances typically do not create a conflict requiring the client’s informed written consent unless certain factors are present.

However, it is arguably less clear how positional conflicts may function in the context of positions taken on social media. Comment 4 to Rule 1.7 provides that a conflict of interest requiring informed written consent) exists “if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities, interests, or relationships, whether legal, business, financial, professional, or personal.” Interpreting similar provisions, at least one bar association has stated that attorneys sharing information on social media sites should exercise caution “when stating positions on issues, as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict.” See District of Columbia Bar Ethics Op. 370.

Although some commentators have suggested that the D.C. Bar’s opinion goes too far to limit attorneys, social media posts can also create sticky client relations issues even if the posts do not rise to the level of a traditional conflict of interest. Below are some tips for avoiding issues when using social media.

Considering Staying Neutral

Social media is generally not a place for balanced, well-reasoned assessments of issues but is used by many to express visceral reactions to news events. While attorneys may feel the urge to immediately share their thoughts with the world, they do so at their own risk.

For example, if Congress is considering passing a law that may impact a client, an attorney may be inclined to immediately offer her or his opinion on that law without regard to whether that position is aligned with the client’s. Even if the attorney’s posting does not create an actual conflict, a client certainly may be less than pleased to see its law firm advocating for a position if that position stands to harm the client’s business, financial or legal interests.

Likewise, commenting on ongoing cases can also be risky, but attorneys who feel compelled to do so can limit their risks by avoiding taking a definite stance and instead presenting a balanced analysis. That could help avoid creating any potential positional conflict with the interests of a client of the attorney and her or his law firm.

Avoid Unprofessional Conduct

Attorneys (typically) understand that their correspondence and briefs should be consistent with the level of decorum expected of members of the bar. Too often, that level of decorum is thrown out the window on social media. However, despite the informality of social media, it should not be considered as a free zone for unprofessional conduct.

A good rule of thumb is to ask whether the comment made on social media would be appropriate if standing outside a courtroom or at a dinner party. Many times, attorneys post comments on social media that they would never say in a face-to-face conversation, much less one with a client.

In some respects, comments on social media are worse than face-to-face conversations, as they are generally broadcast to the world and preserved for posterity. Courts and bars are increasingly taking notice of these issues and applying the same bar rules to social media as they do to traditional legal correspondence.

Think First

The most obvious tip can often be the hardest in practice. Before posting on any substantive issue (e.g., legal or political issues), it is helpful to stop and think practically about the post and the possible response from their firms, clients, and potential clients. Where practical, it may be a good idea to first run the posting by a colleague or firm leadership to ensure that it does not create any unintended conflicts or client relations issues.

Too often, attorneys instead let their emotions take over and fire off a post without a second thought. While attorneys certainly can use social media effectively in establishing a presence in their community or in a certain practice area, the undisciplined use of social media can unfortunately create the wrong kind of presence very quickly.

Shari L. Klevens is a partner at Dentons US and serves on the firm’s US Board of Directors. She represents and advises lawyers and insurers on complex claims, is co-chair of Dentons’ global insurance sector team, and is co-author of “California Legal Malpractice Law” (2014).

Alanna Clair is a partner at Dentons US and focuses on professional liability defence. Shari and Alanna are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance.”

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Kilpatrick Townsend adds chief diversity and inclusion officer

Atlanta’s fourth largest law firm has hired a chief diversity and inclusion officer.

Yendelela Neely Holston is returning to Kilpatrick Townsend & Stockton LLP in the newly created C-suite position and as partner on the firm’s Labour & Employment team after departing from the firm in 2015 to join AT&T. There Holston was assistant vice president – senior legal counsel.

In her previous stint with Kilpatrick Townsend from 2006 to 2015, Holston was an associate and then a Labour & Employment Team partner.

“We are excited to welcome Yendelela back to the Firm,” said J. Henry Walker IV, chair of the international law firm. “Having previously worked with her for a decade, we know she is an extremely talented and skilled attorney with an unwavering commitment to making the legal profession more inclusive and diverse. Her successful and positive experience as an in-house counsel will help her bring valuable insight into client service and will be a great resource to the firm.”

Walker continued, “As the Firm’s Chief Diversity & Inclusion Officer, Yendelela will help lead our efforts to become an even more diverse and inclusive law firm. I look forward to working closely with her and the Diversity and Inclusion Council as we continue to build on our diversity and inclusion success. We are very focused on creating an inclusive environment where the top level talent can develop and succeed.”

Holston said, “I am honoured to return to Kilpatrick Townsend — a firm that has a rich history of being on the forefront of diversity stretching back to its days of representing Martin Luther King, Sr. in the 1960s. I wanted to be a part of a firm that is actively engaged in supporting a diverse workforce and is serious about making it a part of its culture.”

She added, “I look forward to utilizing the knowledge that I gained from an industry leader in diversity, AT&T, where I was an active contributor to the legal department’s efforts to increase diversity in the legal pipeline. I am also excited about re-joining the Labour & Employment Team to help serve its tremendous clients.”

Holston won a Community Champion award in the 2018 Corporate Counsel Awards presented by Atlanta Business Chronicle, in partnership with the Association of Corporate Counsel Georgia Chapter.

Kilpatrick Townsend & Stockton ranks No. 4 on Atlanta Business Chronicle’s Top 50 Law Firms list in its 2017-2018 Book of Lists, with 203 attorneys and 462 staff in Atlanta, and 650 attorneys across 19 offices worldwide.

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California agricultural law firm Saqui links with Dowling Aaron

The Saqui Law Group PC, which often presents continuing education seminars for Sonoma County Winegrowers, joined Dowling Aaron Incorporated in the of-counsel role.

The Saqui Law Group was established in 2007 to represent California growers, packers and shippers with their labor needs.

Dowling Aaron has represented clients in agribusiness and agricultural litigation including farmers, growers, packers, shippers, dairies, wineries, cooperatives, investors, lenders, processors, insurance providers and others involved in the food production industry.

A full merger of the two firms is set for 2019. Dowling Aaron will maintain offices in Fresno, Bakersfield, Visalia, Salinas and Sacramento.

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DLA Piper offloads stake in ALSP to Big Four accounting firm EY

The Big Four’s march into Big Law territory continues as accounting giant EY has taken over Riverview Law, an alternative legal services provider backed financially by DLA Piper.

EY’s acquisition of Riverview Law means DLA Piper has offloaded its stake in the ALSP, which focuses on fixed-fee, process-driven work through managed services, legal operations and technology offerings.

The Big Four accounting firm said that the purchase—which will create a new company called EY Riverview Law—will help it to provide a more efficient service to clients by improving transparency and reducing the costs of routine legal activities.

“Legal managed services is one of the fastest growing segments of the legal market,” said Cornelius Grossmann, EY’s global law leader. “This acquisition underlines the position of EY as a leading disruptor of legal services; it will provide a springboard for current EY legal managed services offerings and bolster the capabilities that we can help deliver for EY clients.”

“We recognise the expertise that Riverview Law has in this growing market area, which when married with the global EY footprint and legal understanding will help drive significant opportunities for EY clients.”

Riverview launched in 2012 with financial backing from DLA Piper, which initially took a 21 percent stake in Riverview’s parent company, LawVest. That ownership stake has reduced over time to 14 percent.

A number of senior DLA Piper partners also had personal investments in LawVest, including former joint CEO and managing partner Sir Nigel Knowles—now chairman at DWF—who is non-executive chair of Riverview and held shares amounting to a 0.9 percent stake in the business. Those partners have now also sold their shares as part of the deal, The American Lawyer affiliate Legal Week has reported.

A DLA Piper spokesperson said “We can confirm that the firm has sold its minority shareholding in Riverview Law and we wish them every success in their next venture.”

DLA has, however, retained a small stake in Kim Technologies, an artificial intelligence platform that was acquired by Riverview in 2015 but demerged from the company in September 2017.

Chris Price, EY’s global head of alliances for tax, led the team advising on the Riverview acquisition and will become CEO of EY Riverview Law once the transaction is complete, which is expected to take place at the end of August.

A Manchester-based Fieldfisher team, led by corporate partner Tom Ward, advised EY on cross-sector issues across Fieldfisher’s technology and outsourcing teams alongside the rest of its M&A team. Technology partner Sam Jardine advised on technology and software matters, with Ward being supported by corporate solicitor Rachel Leigh and tax and structuring counsel Andrew Loan, who led on tax matters.

EY now has more than 2,200 legal practitioners in member firms across 81 jurisdictions. The accountancy giant has recruited a number of partners from private practice competitors in recent years, including former Addleshaw Goddard managing partner Paul Devitt and corporate head Philip Goodstone, who now serves as head of law for the UK and Ireland.

The news comes after Deloitte last month became the final member of the Big Four to receive an alternative business structure license, as the accountancy giants continue to make inroads into the legal services market. Deloitte’s UK arm also recently agreed to an alliance with US immigration firm Berry Appleman & Leiden, a deal that has seen it acquire the law firm’s operations outside of the United States.

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Latham adds leading Mergers & Acquisitions partner in New York

Latham & Watkins LLP is pleased to announce that Jane Greyf has rejoined the firm’s New York office as a partner in the Corporate Department and member of the Mergers & Acquisitions Practice. Greyf’s practice focuses on representing private equity firms and their portfolio companies in leveraged buyouts, private M&A transactions, joint ventures, and growth equity investments. She also advises corporate clients in strategic M&A matters.

Greyf has an extensive track record representing leveraged buyout sponsors, venture capital funds, hedge funds, and other private equity investors and portfolio companies in various acquisitions, dispositions, investments, joint ventures, buyouts, tender offers, co-investments, and leveraged finance transactions. She also advises public and private companies in various corporate and securities law issues, including corporate governance, securities law compliance, and general corporate matters. Her experience spans several industry segments, including energy, general industrials, and technology.

“Jane is an accomplished lawyer who has worked on significant M&A transactions,” said Michèle Penzer, Office Managing Partner of Latham & Watkins in New York. “As the New York office continues to grow in a number of areas, including private equity and strategic M&A, we are thrilled to welcome Jane back to the firm.”

“Jane’s practice is a perfect fit for our corporate ambitions in the US and globally. We are focused on building the premier public M&A and private equity practice around the world, advising major listed companies and the world’s leading private equity firms and their portfolio companies on their complex business and legal needs. Jane’s boardroom experience, commercial approach, and mix of skills strongly support our growth in New York, and her arrival marks another step forward in achieving our goals,” added Marc Jaffe, Global Chair of Latham & Watkins’ Corporate Department.

“We continue to see increased demand and opportunities in all areas of our New York M&A practice with a diversity of clients, both public and private,” said David Allinson, Co-Chair of Latham’s Corporate Department in New York and M&A partner. “Jane’s experience advising on high-stakes M&A adds further depth to our platform.”

“We are delighted to add someone of Jane’s stature to our practice, as we are increasingly working on M&A matters that require substantial support across practice areas and geographies,” said Kathleen Walsh, Global Vice Chair of Latham & Watkins’ Corporate Department. “Jane’s expertise will be of tremendous benefit to our clients not only in New York, but around the globe.”

“I started my career at Latham and I know the culture well. I’ve been excited to watch the firm’s strong growth and the execution of its strategy over the years. I am thrilled to rejoin the team and to be a part of the firm’s continued success in New York and beyond,” said Greyf.

Greyf joins Latham & Watkins from Goodwin Procter in New York. She was an associate in the Corporate Department at Latham & Watkins from 1998 – 2006. She received her JD from Columbia University, where she was a Harlan Fiske Stone Scholar, and her BA from New York University.