Washington Lawyer

Legal Beat

From Washington Lawyer, January 2010

By Kathryn Alfisi and Thai Phi Stone

News and Notes on the D.C. Bar Legal Community

Adoption At Last
adoptionMcDermott Will & Emery LLP pro bono attorneys Joanne Ludovici-Lint (left) and Robert W. Zelnick flank their Children’s Law Center client Paula Lancaster and her newly adopted daughter Zuri at the 23rd Annual Adoption Day ceremony on November 21 at the H. Carl Moultrie Courthouse. The event, which was cohosted by the Superior Court of the District of Columbia and D.C. Child and Family Services Agency, featured 36 official adoptions being finalized. Courts across the country hold similar ceremonies to celebrate National Adoption Day, which is aimed at bringing attention to the plight of children in foster care.—K.A.

Bar Accepting Résumés for 2010 Elections
The D.C. Bar is accepting résumés from members wishing to be candidates in the 2010 Bar elections. The deadline for receipt of résumés is January 8.

The D.C. Bar Nominations Committee is charged with nominating individuals for the positions of D.C. Bar president-elect, secretary, and treasurer; five members of the D.C. Bar’s Board of Governors; and three vacancies in the American Bar Association (ABA) House of Delegates. All candidates must be active members of the D.C. Bar; all candidates for ABA House positions also must be ABA members.

Nominations may be submitted online at www.dcbar.org, keyword: nominations, or mailed to the D.C. Bar Nominations Committee, Attn: Katherine A. Mazzaferri, 1101 K Street NW, Suite 200, Washington, D.C. 20005-4210.

For more information, contact D.C. Bar Executive Director Katherine A. Mazzaferri at 202-737-4700, ext. 3220, or executive.office@dcbar.org.

Bar Sections Announce Steering Committee Openings
The D.C. Bar Sections Office is seeking Bar members interested in Steering Committee positions for all 21 sections. Members wishing to be considered should submit a Candidate Interest Form and résumé to the Sections Office by 5 p.m. Eastern Time on February 4. Candidate Interest Forms were mailed and also are available online.

Steering Committee vacancies are for three-year terms. Each section has two or three available positions.

The Sections’ Nominating Committees will review all Candidate Interest Forms to find the best-qualified, diverse candidates. Two to three candidates will be nominated for each position. Previous leadership experience with voluntary bar associations or with the Bar’s sections is highly desirable.

The elections will take place in the spring of 2010, and the results will be announced in June. The winning candidates will assume their new Steering Committee roles on July 1, 2010.

For more information about the elections or to view the complete list of vacancies, visit www.dcbar.org/for_lawyers/sections/section_elections/index.cfm.

Bar Sets Forth 5-Year Outlook With Release of First Strategic Plan
The D.C. Bar Board of Governors has adopted the organization’s first strategic plan clarifying its mission and vision and setting seven goals on which to focus its energies in the next five years.

The plan was developed under the direction of a special committee chaired by D.C. Bar members Amy L. Bess of Sonnenschein Nath & Rosenthal LLP and James W. Jones of Hildebrandt International. After undertaking a review of the Bar’s history and soliciting feedback from a wide range of Bar leaders and members, the committee drafted a document that sets forth the organization’s core ideology, a vision of its long-term future, seven goal areas, and a set of objectives under each of those goals to help the organization achieve measurable results.

“Our strategic plan was developed by a special committee that undertook significant research about our history as well as our members’ and leaders’ opinions about our current operations and future direction,” said D.C. Bar President Kim M. Keenan in transmitting the plan to the chief judges of the District of Columbia Court of Appeals and the Superior Court of the District of Columbia.

“The result is a document that will serve as the touchstone for the best use of the Bar’s resources within the confines set by the District of Columbia Court of Appeals and our membership,” she added.

In addition to Bess and Jones, the Strategic Planning Committee included Rawle Andrews Jr. of AARP Legal Counsel for the Elderly; Brigida A. Benitez of WilmerHale LLP; Stephen I. Glover of Gibson, Dunn & Crutcher LLP; Andrew H. Marks of Crowell & Moring LLP; Darrell G. Mottley of Banner & Witcoff, Ltd.; Laura A. Possessky of Gura & Possessky, P.L.L.C.; Robert J. Spagnoletti of Schertler & Onorato, L.L.P; and Annamaria Steward of the University of the District of Columbia David A. Clarke School of Law. Representing the D.C. Bar staff on the committee were Executive Director Katherine A. Mazzaferri, Assistant Executive Director for Programs Cynthia D. Hill, Assistant Executive Director for Administration and Finance Joseph P. Stangl, Pro Bono Program Director Maureen Thornton Syracuse, and Communications Director Cynthia G. Kuhn.

Bar to Conduct Judicial Evaluations
The D.C. Bar Judicial Evaluation Committee has kicked off its 2009 evaluation program. Selected attorneys are invited to provide feedback on the performance of 32 judges who preside over the District of Columbia Court of Appeals and Superior Court of District of Columbia.

This year, more than 5,000 attorneys were provided the opportunity to participate in the evaluation program. These attorneys have appeared before the judges in the 24-month period (July 1, 2007 to June 30, 2009) prior to the evaluation. Attorneys can submit a hard copy or online response. All participants will remain anonymous. The deadline for submissions is January 15, 2010.

The following D.C. Court of Appeals judges will be evaluated: Chief Judge Eric T. Washington; Senior Judges John M. Ferren, Warren R. King, Theodore R. Newman, William C. Pryor, Frank E. Schwelb, and John A. Terry; and Associate Judge Stephen H. Glickman.

The following D.C. Superior Court judges will be evaluated: Chief Judge Lee F. Satterfield; Senior Judges Mary Ellen Abrecht, Bruce D. Beaudin, Leonard Braman, Frederick Dorsey, Stephen F. Eilperin, Eugene N. Hamilton, Ronald P. Wertheim, and Patricia A. Wynn; and Associate Judges Jerry S. Byrd, Stephanie Duncan-Peters, Brook Hedge, Brian Holeman, Craig Iscoe, William M. Jackson, Ann O’Regan Keary, Cheryl M. Long, Judith N. Macaluso, Robert E. Morin, Hiram E. Puig-Lugo, Judith E. Retchin, Robert I. Richter, Michael Ryan, and Fern Flanagan Saddler.

Judges are evaluated in their 2nd, 6th, 10th, and 13th year of service, and senior judges are evaluated once before the end of each term.

Each evaluated judge, along with the chief judge of each court, will receive a copy of the survey results. Evaluation results of senior judges and judges in their 6th, 10th, and 13th year of service also will be sent to the D.C. Commission on Judicial Disabilities and Tenure.

Equal Justice Advocates
equalThe Hispanic Bar Association of the District of Columbia (HBA-DC) presented D.C. Superior Court Judge Laura A. Cordero (center) with its Judge Ricardo M. Urbina Lifetime Achievement Award during its 2009 Equal Justice Awards Reception on November 12. Cordero is flanked by Kenia Seoane Lopez and Marlon Quintanilla Paz, president-elect and president, respectively, of HBA-DC. The reception also featured the presentation of the Hugh A. Johnson Jr. Memorial Awards to the Latino Student Fund and to American University Washington College of Law professor Anthony E. Varona, as well as the Rising Star Award to Troutman Sanders LLP associate Jordi de Llano.—K.A.

Labor Department Receives Federal Agency Pro Bono Leadership Award
On October 29 the U.S. Department of Labor was honored with the Federal Agency Pro Bono Leadership Award by the Interagency Pro Bono Working Group for having demonstrated the most significant growth in and commitment to encouraging and facilitating pro bono work among its employees.

Judge Paul Friedman of the U.S. District Court for the District of Columbia presented the award during the Federal Government Pro Bono Recognition Reception at the E. Barrett Prettyman United States Courthouse. Friedman recounted the tremendous efforts by the department over the past two years, including hosting multiple events to build support among its employees for pro bono projects. The agency also revised its pro bono policy and instituted a progressive administrative leave policy for pro bono work.

In addition, the department’s employees have regularly staffed the D.C. Bar Pro Bono Program Advice & Referral Clinic and held a special pro bono volunteer recognition reception in January 2009, which recognized each volunteer with a Certificate of Appreciation.

The Department of Labor’s commitment to pro bono work also extends to Chicago, where it has actively supported the development of the Federal Government Pro Bono Program by serving on the program’s steering committee.

Deputy Solicitor for National Operations Carol De Deo and Pro Bono Coordinators Kathy Easmunt and Liz Goldberg accepted the award on behalf of the Department of Labor.

Held by the District of Columbia Circuit Judicial Conference Standing Committee on Pro Bono Legal Services, this year’s reception was hosted by Chief Judges David Sentelle of the U.S. Court of Appeals for the District of Columbia Circuit and Royce Lamberth of the U.S. District Court for the District of Columbia. U.S. Solicitor-General Elena Kagen was among the attendees at the event, which drew general counsels, solicitors, judge advocate generals, and other agency leaders who came out to show their support for the pro bono work of government attorneys.

The Federal Agency Pro Bono Leadership Award was established in 2007 and is presented every other year to honor and promote pro bono efforts by federal government agencies.—T.S.

Board of Governors Approves New Leadership Task Force
The D.C. Bar Board of Governors approved the creation of a Leadership Initiative Task Force at its November meeting.

The task force, proposed by Bar President Kim M. Keenan, will explore ways to promote leadership within the Bar. It will be chaired by Alfreda Robinson Bennett, an associate dean at The George Washington University Law School, and David J. Cynamon, a partner at Pillsbury Winthrop Shaw Pittman LLP.

“Leadership is a core value of our Bar. When we invest in developing leaders, we invest in the profession,” Keenan said.

During its year-long existence, the task force will identify the skills of successful leaders, determine current training mechanisms at the Bar, research outside leadership institutes and training modules, examine how to strengthen leadership skills in existing Bar leadership groups, and explore the feasibility and cost of developing a leadership training institute and/or providing leadership training opportunities at the Bar.

The task force will present its findings and recommendations in a final report to the Board of Governors.—K.A.

Court of Appeals’ Pilot Project Targets Caseload Management
The District of Columbia Court of Appeals will launch a six-month pilot project aimed to help manage its caseload more efficiently and effectively.

Beginning January 2010, oral arguments on regular and summary calendars will be limited to 15 minutes per side, which may only be extended under the court’s discretion. The court has reminded attorneys that they do not need to spend their allotted time reciting the facts because judges will have already read their briefs prior to the oral arguments.

In addition, requests for arguments in summary calendar cases will no longer be routinely granted by the clerk. All requests must be made by motion demonstrating good cause and granted only if the assigned merits panel determines that oral arguments will be helpful.

The pilot project also makes changes to requests for argument in summary calendar cases and suspends D.C. App. Rule 34(g)(1) regarding cases scheduled for argument from January 1, 2010, to June 30, 2010.

Throughout the pilot project, the clerk will collect data to help evaluate whether the pilot project will continue or be modified.—T.S.

Court Requests Input on Revisions to Rules Governing IOLTA
The District of Columbia Court of Appeals has set a deadline of January 4 2010, for written comments on proposed revisions to the D.C. Rules of Professional Conduct Governing Interest on Lawyers’ Trust Accounts (IOLTA). The changes, if adopted by the court, will boost funds distributed by the D.C. Bar Foundation to local legal services providers by increasing revenue from D.C. IOLTA and interest paid by banks on funds held in D.C. IOLTA. The revisions also provide greater clarity to trust account ethics rules. The D.C. Bar forwarded the proposed amendments to the Court after considering a study and review by the D.C. Bar’s Rules of Professional Conduct Review Committee and the D.C. Bar Foundation.

Under the proposed revisions, all D.C. Bar members receiving IOLTA-eligible funds would be required to participate in the IOLTA program, except when a lawyer is otherwise compliant with the contrary mandates of a tribunal; or when the lawyer is participating in, and compliant with, the trust accounting rules and the IOLTA program of the jurisdiction in which the lawyer is licensed and principally practices. In addition, banks that wish to qualify as approved depositories in which D.C. Bar members are permitted to hold client funds must agree to provide certain interest rates on IOLTA.

A proposed provision seeking to monitor D.C. Bar members’ participation in the IOLTA program by the D.C. Bar Foundation was not forwarded to the Court, but reserved for further study by the D.C. Bar’s Regulations/Rules/Board Procedures Committee.

Ten copies of any comments should be sent to the Clerk, D.C. Court of Appeals, 430 E Street NW, Suite 209, Washington, D.C. 20001. Comments submitted to the court will be available to the public.

To view both the court notice and proposed revisions, visit www.dcbar.org, keywords: IOLTA comments. For a hard copy, contact Duane Tolson at 202-737-4700, ext. 3358, or dtolson@dcbar.org.—T.S.

Bar Members Must Complete Practice Course
New members of the District of Columbia Bar are reminded that they have 12 months from the date of admission to complete the required course on District of Columbia practice offered by the D.C. Bar Continuing Legal Education Program.

D.C. Bar members who have been inactive, retired, or voluntarily resigned for five years or more also are required to complete the course if they are seeking to switch or be reinstated to active member status. In addition, members who have been suspended for five years or more for nonpayment of dues or late fees are required to take the course to be reinstated.

New members who do not complete the mandatory course requirement within 12 months of admission receive a noncompliance notice and a final 60-day window in which to comply. After that date, the Bar administratively suspends individuals who have not completed the course and forwards their names to the clerks of the District of Columbia Court of Appeals and the Superior Court of the District of Columbia, and to the Office of Bar Counsel.

Suspensions become a permanent part of members’ records. To be reinstated, one must complete the course and pay a $50 fee.

The preregistration fee is $219; the on-site fee is $279. Course dates are January 9, February 2, March 6, April 13, May 8, June 8, and July 10. Advanced registration is encouraged.

For more information or to register online, visit www.dcbar.org/mandatorycourse.

Learning The Law
learningHigh school students participating in the National Youth Leadership Forum on Law visited the D.C. Bar headquarters on November 6 to hear firsthand about careers in the law from legal practitioners. The National Youth Leadership Forum, which has been helping young people prepare for professional careers since 1992, offers forums on a wide variety of career fields, including national security, law, medicine, and technology. The Law Forum takes place over a 60-day period in Washington, D.C., where students interact with legal scholars and practitioners and visit law schools, law firms, and the courts. This year the students visiting the D.C. Bar learned about the legal profession from Michele Meitl, staff attorney and training manager for the D.C. Bar Pro Bono Program; Bar Counsel Gene Shipp; and sports attorney Ellen Zavian.—K.A.

Amendments Made to Superior Court Rules of the Probate Division
The Board of Judges of the Superior Court of the District of Columbia has approved amendments to Superior Court Rules of the Probate Division 311, 321, 322, 324, 325, and 350, regarding aspects of guardianship, conservatorship, and protective proceedings.

The changes will affect the service of petition and notice of hearings by consolidating the requirements into one rule. They also modify procedures to proceedings for appointing and terminating guardianship or conservatorship.

The amendments will take effect January 4, 2010.

To view Promulgation Order 09-06, visit www.dcbar,org, keywords: probate division. —T.S.

Mendelsohn, Weinberg Receive 2009 Pursuit of Justice Award
pursuitOn December 3, inside the historic chambers of the United States Supreme Court, the American Association of Jewish Lawyers and Jurists presented attorneys Martin Mendelsohn and Robert L. Weinberg with the prestigious 2009 Pursuit of Justice Award.

Associate Justice Stephen G. Breyer delivered the welcoming remarks to a room full of legal notables, including deans from area law schools and judges from around the country. “Equal justice under law means something to every American,” said Breyer. “To see people come here and resolve their issues under the law instead of on the street with guns is a treasure.”

D.C. Bar President Kim M. Keenan, who introduced Weinberg, spoke of the latter’s strength as a leader and his desire to teach the next generation of lawyers. “Bob grows us as a profession,” she said. “He combines his love for advocacy of justice with grace.”

“The whole concept of the pursuit of justice is an ancient one. One pursues justice for a long time, but never fully achieves it,” said Weinberg, whose tremendous career illustrates his deep commitment to the law. Weinberg is a retired founding partner of Williams & Connolly LLP, and former president of both the D.C. Bar and the Bar Association of the District of Columbia.

On the other hand, Frederick Lawrence, dean of the George Washington Law School, called Mendelsohn a fighter, a counselor, a dealmaker, and an inspiration for everyone in the legal community. Most notably, Mendelsohn served as chief of the U.S. Department of Justice’s special litigation unit responsible for the prosecution of alleged Nazi war criminals living in the United States.

“This honor is one of those rare things that really touch my core,” Mendelsohn said. “Nothing we do can bring back the [Holocaust] victims, but everything we do should honor their memories and sacrifice.”

The evening was capped off by a stirring performance by cantor Moshe Taubé.—T.S.

Bar Publishes 18th Edition of D.C. Practice Manual
The 18th edition of The D.C. Practice Manual is available to purchase for $265.

This two-volume manual is an important resource that provides information on the basics of practicing law in the District of Columbia and includes citations to key statutes, regulations, court rules, and cases, as well as relevant forms.

The 18th edition includes 25 revised chapters covering a range of topics: administrative procedures, alternative dispute resolution, antitrust, appellate practice in the District of Columbia Court of Appeals, art, child abuse and neglect, commercial law, consumer protection, corporate practice, criminal law and practice, criminal traffic offenses, domestic relations, employment law, environmental law, government contracts, Health Maintenance Organization Act, intervention proceedings, legal ethics and attorney discipline, mental health proceedings, partnerships, personal injury, taxation, United States District Court practice, wills and estates, and workers’ compensation.

To purchase the 18th edition of The D.C. Practice Manual, call 202-737-4700, ext. 3268, or visit www.dcbar.org/publications.

trends

Is Lockstep Losing Its Merit? Law Firms Rethink Hiring System
With red bag in hand, Jay Leno delivered his famous 1980s line: “Crunch all you want. We’ll make more.” Leno was hawking Doritos at the time, but for Dr. Larry Richard, vice president and head of Hildebrandt International’s leadership and organization development practice group, the famous comedian might as well have been talking about the legal industry’s lockstep compensation system.

“The model behind the promotion system was the Doritos model,” Richard said as he described how law firms traditionally have churned out associates. The strategy included hiring more associates than necessary at the same pay scale, investing in training, and watching as many leave the firm. Wash. Rinse. Repeat. “A much more efficient way would be to hire fewer, hire better,” he added.

Over the years some law firms have modified the model by adding performance-based bonuses, but most are still functioning on at least a partial lockstep—a system where associates’ salaries are based on class year, regardless of background, talent, or experience. “I can’t think of a business [except the legal industry] where people get promoted automatically every year,” Richard pointed out.

It was time for change, said Eileen Billinson, chief of human resources and attorney programs at Howrey LLP. “There was a lot of wining and dining going on across firms with summer programs. We made the decision that our approach to associate development and career management had to be much different. We were going to put the emphasis on where we think it belongs, which was the development of experience and expertise.”

Client-Friendly Performance Yardstick
At Howrey, the transition was a gradual one. In 2003, under the leadership of Managing Partner and Chief Executive Officer Robert Ruyak, the firm implemented a competency model that defined the core characteristics associates need to succeed and the training programs to help them develop those skills. By late 2007 Howrey began discussing the move from the lockstep compensation model to a potential tier system, where each tier has a set of skills associates must master before advancing.

After several focus groups and studies, Howrey unveiled its five-tier model in January 2009. “The reality is that turning the page of a calendar just doesn’t make you a better lawyer. The idea to tie your advancement to competency is frankly a no-brainer,” said Sean Beaty, a senior associate at Howrey. He did, however, concede that
associates were anxious about the process.

Beaty’s colleague, Sonia Williams-Murphy, echoed the same sentiments: “We knew coming in the door that this is what I’m going to make as a first-, second-, third-, or fourth-year [associate]. All of a sudden, that was wiped out.”

Another big law firm, Orrick, Herrington & Sutcliffe LLP, also overhauled its compensation system. The global firm went off of lockstep in July 2009 after more than a year of evaluation. Its new structure, called the Talent Model, has three tracks: partner track associates, career attorneys, and custom track associates. The partner track is broken down further into three levels—associate, managing associate, and senior associate.

“This is about helping associates grow at their rate and not having an artificial pressure of class year dictate when they’re going to have certain expectations to produce,” said Adam Goldberg, a partner at Orrick’s Washington, D.C., office. “At the same time, because somebody has grown a day older does not necessarily mean their billing rates should increase.”

Dan DiPietro, client head of Citi Private Bank’s law firm group, also spelled out how the merit-based system benefits clients. “It’s more aligned with the way clients think about the way to reward people,” DiPietro said. “It’s more client-friendly.” Additionally, clients will no longer have to bear the cost of training young associates.

Moving Away From Tradition
But are firms saving clients money on the backs of associates? Many fear that firms will reduce associate salaries across the board, while just a select few will earn top dollar. For Beaty and Williams-Murphy, that concern is a moot point. “The general sense is that everyone [at Howrey] is at or above market,” Beaty said.

“I’d be concerned that I’d take a pay decrease if I left and went somewhere else,” Williams-Murphy, said. “They’d put me right back on lockstep and they’d say, ‘Okay this is what our so- and-so years make.’”

DiPietro, however, allayed the fears of a pay reduction on a merit-based system, saying, “If you are truly a top performer and you compared what a lockstep firm would offer you in total compensation versus the firm that has the right kind of program, you’d be able to earn more.”

In an industry seen as resistant to change, the transition off of lockstep—the pillar of the legal community—is a scary one. “I think lawyers, both based on their training and to some extent, their DNA, have a built-in level of caution and risk averseness,” DiPietro said. “A change of this magnitude and that is this profound is going to get a lot of questions at all levels.”

The key to easing associate fears is creating a strong competency model and accurate evaluation process, Richard said. He urges firms to take a scientific approach instead of the typical one that involves partners meeting in a room to determine the necessary criteria for evaluation. “There’s no link between what the partners come up with in the discussion and the actual ability to have those variables predict performance later down the road. It’s a crapshoot.”

In a scientifically derived competency model, a firm would do an experiment by identifying criteria that have actually produced successful people compared to ones that do not. From there, it would form a hypothesis and test it empirically to obtain statistics that can tell it approximately what the risks are of making a hiring mistake.

“That more scientific approach is done all the time in the corporate world,” Richard said. “I can count on one hand the number of law firms that actually use that approach.” Each law firm should do its own tests. While more than half of the competencies would be universal, the remaining factors are unique to the firm.

To alleviate concerns about unfair evaluations, partners must try to ensure that raises are normalized in various offices so that an associate in Utah is not receiving a higher raise with a similar evaluation as an associate in California. Another hurdle to a robust evaluation system is complete buy-in from all partners, who now have to spend a significant amount of time providing feedback to their associates. But if done correctly, everyone benefits because associates can target the skills they need to improve and, in turn, increase their value to the firm and its clients.

Buy-in must also come from associates as well, who may feel their career tracks are in jeopardy. For both Howrey and Orrick, associate involvement was critical to getting the idea off the ground. At Howrey, associates participated in focus groups, offering their opinions on everything from the amount of tiers to a need for even greater transparency. In addition to monthly all-attorney meetings, Orrick had a formal committee that traveled to each office addressing concerns and ideas about the transition with partners and associates.

Zero-Sum Equation With Long-Term Benefits
Howrey’s Billinson, however, stressed that the economy did not drive the firms’ decision to break away from lockstep. In fact, many firms trying to penny pinch by switching to a merit-based system are realizing that creating a well-devised, scientifically derived competency model can be quite expensive.

“At the end of the day, this is probably a zero-sum game, meaning that you probably want to allocate the same kind of bonus money, maybe an even larger pool, but divvy it up differently based upon performance,” DiPietro said.

A firm, however, can save money on turnover. Since Husch Blackwell Sanders, LLP (previously Blackwell Sanders) made the transition in 2001, it has had a dramatic reduction in turnover, Richard noted. “It’s very expensive for a firm to lose and then have to hire and retrain a new associate.”

With a decrease in turnover, firms will be able to create an environment of loyalty. “The principle benefit [of a merit-based system] is that it forces a firm to act more like a unified enterprise and take responsibility for managing the development of its talent instead of saying, ‘Each person to themselves, and we’re a bunch of solos who share the same letterhead,’” Richard added.

“The lockstep system really fails every constituency,” Billinson said.

Richard agreed. “The [merit-based system] is a design change that brings law firms into the modern world. It makes them much more like well-run businesses than before, and that benefits everybody.”—T.S.

Reach D.C. Bar staff writers Kathryn Alfisi and Thai Phi Stone at kalfisi@dcbar.org and tstone@dcbar.org, respectively.