Construction Law in Virginia at Posterous

Among other things, Twitter's new #LISTS functionality is a terrific way to further expand your connections on the popular communications platform. I've been surfing friends' lists - something akin to falling down a Twitter-fueled rabbit hole, finding interesting people to follow along the way

For the rest, click the link above.

We are proud to announce that Elaine Hsieh is the newest member of the Build2Sustain advisory board.  We look forward to all the knowledge and experience Elaine will share and know that she will be a vital asset to the team.  Please visit the B2S Team page to learn more about Elaine, and join me in giving her a big welcome!

This is a great addition to the B2S board!

Advisory Board member, Chris Hill, brings up the legal complications of guarantees in this week's post.  To find out more about Chris, visit the B2S team page.

As I was following some of the posts by friends on Twitter, I came across a post by a consultant that guarantees LEED Certification.  This got me thinking about the myriad issues relating to the third party certification aspect of adding such certification to construction contracts and the relationship of consultants to this process.

Much has already been said, particularly at the Green Building Law Update, a great blog by my friend Chris Cheatham, relating to the queasiness that overcomes a construction attorney at such guarantees.  Many aspects of any "guarantee" need to be clarified.  What about the energy reporting requirements that USGBC has imposed?  Will this, and the seemingly unlimited time horizon of such reporting, be included?   Does any guarantee only kick in at the initial stage and the consultant then is no longer "on the hook?"  What about continued commissioning and the vagaries of later behavior by facilities managers?

Also, the use of third parties as opposed to just USGBC or GBCI "officials" adds to this uneasy feeling I get when looking at this guarantee.  Third party certification adds a new layer to the guarantee.

The issues with this guarantee are much like those that face LEED and other rating systems from both a regulatory and contractual standpoint.  The time horizons and human interaction with a “green” space are risk issues that need to be dealt with before the mindset of the masses can be changed. 

Build2Sustain seeks to change the landscape and debate about green building from one of a “movement” to a practical business directive.  Hopefully this change will encompass a response to these issues.

The energy reporting issues have been discussed at length at Musings and elsewhere, I recommend that you check out that discussion for further thoughts on this issue.

Please share your thoughts on this debate with a comment below.

 

(Note--this was cross-posted at Sui Generis-a New York Law Blog as well).

Some of you may wonder just that--who is Nicole Black? However, more likely than not, most of you probably don't care. I realize that--and answering that question really isn't my goal here, so please excuse what appears to be a rather extreme case navel gazing.

The primary purpose of this post is to clarify, for search engine purposes, who I am, what I do and why.

This is my strongest domain name in terms of SEO which is why I'm posting this here. I'll be linking to it on my other blogs and if you have a blog, I would be ever so grateful if you would link to it as well (even if it consists of just a single word in an unrelated post that links back to this post-I'm just hoping for inbound links).

That will help push this post up in search engine rankings so that when people search for my name or my Twitter ID this is where they'll end up and they'll be sure receive accurate, truthful information about me.

I am 39 years old, have been married for 11 years and have 2 children. I have lived in Rochester, NY for most of my adult life.

I graduated from Albany Law School in 1995 and was admitted to the New York State Bar in 1996.

I interned in the Monroe County Public Defender's Office appeals bureau from 1995-1996. During that time, I accomplished one of the most significant wins of my legal career: I was successful in overturning a murder conviction in the matter of People v. Sierra, 231 A.D.2d 907, 647 N.Y.S.2d 891 (4th Dep't 1996).

Shortly after I argued that appeal, I was hired as an Assistant Public Defender and worked there for nearly 4 years, handling over 3000 criminal cases during that time frame. I conducted countless hearings and trials, including a number of jury trials.

In 1999 I left the Public Defender's Office and was hired as an associate at Trevett, Cristo, Salzer & Andolina. I continued to handle criminal defense matters. I handled  assigned counsel matters, had my own retained criminal defense matters and worked with some of the partners at the firm, widely held to be some of the best criminal defense attorneys in town, on their cases. I also handled all types of civil litigation matters, ranging from personal injury litigation (plaintiff and defense), commercial litigation and built up my own employment discrimination book of practice.

In 2002 my first child was born. Later that year, I was told that I was on partnership track and would likely make partner the following year. My internal reaction to the knowledge--dread--caused me to take a deep look inward. I realized that I wasn't happy.  I knew that I wasn't where I wanted to be in life and if I stayed on that track, I'd most likely be stuck for good.

I loved the firm and the people in it. That's not what was making me unhappy. I wasn't sure what was, but I knew that I felt like a part of me was dying--and I needed a change.

So, I took a self imposed hiatus from the law in 2003 and had my second child. I returned to the law in 2005, opening up shop as a contract attorney and started my first blog--this blog.

From there, things fell into place for me. As I blogged, business found me. Lawyers hired me to do work for  them, and at the same time, writing and speaking opportunities were offered to me.

I began to write a weekly column for the Daily Record and was offered the opportunity to co-author the West Thomson treatise Criminal Law in New York.

And, in early 2007, Ed Fiandach approached me to do work for his office, a well-recognized DWI defense firm. After I'd handled a few projects for him, he asked if I would consider becoming of counsel with the firm and handle appeals (including appellate arguments) and memos to the court for their office.

I happily agreed, with the understanding that I could continue my writing and blogging. I wanted to be able to continue to express myself without reservation.

Ed agreed and also advised me that if I ever wanted to make court appearances, including hearings and trials, that option was available to me as well.  I declined, since I knew that if I did so, I would lose the flexibility for which I had worked so hard.

I continue handle projects for the firm. The demand for my assistance with projects varies to this day, depending on any number of factors: the economy, demand within the office, the number of appeals filed by the DA's office, and my own schedule. Just last month I declined a few projects due to a number of writing deadlines that I was facing.

While criminal defense has always been one of my primary passions, I've  found another since re-entering the legal field in 2005: a fascination with the intersection of law and technology.

I regularly write, blog and speak about this topic. Earlier this year, I founded lawtecthTalk, which is the vehicle through which I seek to empower and encourage lawyers to accept change and technological advancement by bringing them the most up-to-date information through personal consultations, speaking engagements, and online presentations.

I continue to speak regularly about the intersection of law and technology and am in the process of writing a book about social media for lawyers, which I am so fortunate to be co-authoring with Carolyn Elefant.

I find the balance between my various endeavors to be perfect. I no longer experience a sense of dread when I think about where my professional career is leading me. I feel passion every day for the issues that occupy my thoughts as a result of my chosen career path.

As I re-read the previous paragraph, I realize just how lucky I am. Each day is an adventure--and one that I welcome. You can't get much better than that now, can you?

Bo Fishback
Photo by Steve Puppe

As of 2005, some 62 percent of attorneys in private practice work as solo or small-firm practitioners, according to the most recent data avail­able from the American Bar Association. Those numbers likely have swelled and will continue to do so as law firms reorganize and re-evaluate their professional staffing needs.

What was once a calculated career decision has become a matter of survival for many. But wheth­er a lawyer can cut it as a solo is not necessarily a sure thing, experts say. Not all lawyers have what it takes.

There is no magic formula for building a successful solo practice. It takes planning, persistence, long hours, sweat equity and personal sacrifice.

So whether you’re in for the long haul or just staving off the bill collectors, here are some useful tips from experts and newly minted solos to help ease the transition.

A great article featuring my friends Craig Niedenthal, Carolyn Elefant and Susan Cartier Liebel

A great post and link from Matt Handal at Help Everybody Everyday. And, as an added bonus, we have a penguin.

10 Safe Social Networking Tips For Attorneys

 

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Table of Contents 10. Be professional – always 9. Be thoughtful about who you connect with 8. Don't fall victim to the myth of anonymity 7. Watch the line between networking and soliciting 6. Exercise editorial discretion – over yourself and others 5. Know your state's advertising rules 4. Avoid unauthorized practice 3. Don't give legal advice 2. Don't talk about your clients or their cases 1. Use common sense       Need An Expert?| 877.838.8464 Print This Article ShareThis

by Robert Ambrogi
BullsEye: October 2009
IMS ExpertServices™ is the legal industry's premier full-service expert witness provider.

LinkedIn. Facebook. Twitter. Blogs. Some say these social media sites offer legal professionals brave new worlds of opportunity, marketing and collaboration. Others assert they are minefields full of danger for the unwary or unwitting.

Which is correct? Both, of course. Yes, these various forms of social media present powerful opportunities. Yes, they also pose significant dangers.

BullsEye reported last month on how litigants, lawyers, witnesses, jurors and even judges are seeing their online activities come back to haunt them in court and elsewhere. We promised to return this month with advice on how to avoid trouble online.

So how can legal professionals practice "safe social networking?" In the spirit of the topic, we turned to social networking sites such as LinkedIn and Facebook to put that question to a variety of lawyers and consultants.

From the feedback we received, we distilled their advice down to these top 10 tips.      

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10. Be professional – always
Remember that you are an attorney 24/7. Behave like one and always be professional in whatever you do online.

That means, above all, be truthful in what you say about yourself, your abilities and your practice. Be particularly careful in the bio you post on your website or blog and in the profiles you create for Facebook, LinkedIn and other sites. Do not portray yourself to be something you are not.

Being professional also means not calling others names online. In particular, do not call judges names. As comical as it seems to say that, a Florida lawyer was not laughing after he was disciplined and fined recently for writing on his blog that a judge was an "evil, unfair witch."

In whatever you post online, pay attention to protecting your own "brand" and your own professional reputation. "Participate – be part of the conversation," advises Mark Beese, president of the consulting firm Leadership for Lawyers in Denver. "But don't do anything that might diminish your reputation. Think."     

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9. Be thoughtful about who you connect with
One simple way to protect yourself in social networks is to be careful who you connect with. Our story last month gave an obvious example of this in the tale of the judge who "friended" a lawyer on Facebook when that lawyer was representing a party in a trial before the judge. Not surprisingly, the judge was reprimanded and the losing party got a new trial.

Another connection to avoid is one made for a dishonest purpose. An ethics panel has said, for example, that it is inappropriate for a lawyer to friend someone in order to investigate the person or to gain access to restricted information in connection with a legal action.

Also be careful to avoid connecting with others who may have their own ulterior motives in connecting with you. And consider whether a connection or an endorsement could someday come back to haunt you as evidence of a conflict of interest.

"While social media offers everyone literally thousands of connection opportunities, size of connections matters much less than quality of interaction," says Vanessa DiMauro, founder of the Boston social-media consulting firm Leader Networks. "Be intentional, make great impressions, and offer value to those who you connect or interact with."

A common practice among legal professionals is to segregate professional and personal contacts in different networks. "I still treat Facebook and LinkedIn separately," says Reid Trautz, director of the Practice and Professionalism Center at the American Immigration Lawyers Association in Washington, D.C. "Facebook is for personal use including family, friends, and professional friends; LinkedIn is strictly for professional connections and professional friends."

Joshua Masur, a partner with the law firm Turner Boyd in San Francisco, does the same, using LinkedIn professionally but restricting his Facebook connections to friends and close colleagues. "Of course, this means that you have to be willing to draw lines," he says, "which means being willing to say no when people ask to connect in a network that you've restricted."              

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8. Don't fall victim to the myth of anonymity
"I would never delude myself that socializing 'anonymously' on any of these platforms is truly anonymous, including commenting on blogs," cautions Susan Cartier Liebel, the Connecticut-based founder of Solo Practice University.

The recent history of the Web is replete with stories of the unmasking of legal professionals who thought they were posting anonymously. There was the assistant U.S. attorney who was exposed by a major magazine as author of an anonymous blog about judges. There was the in-house lawyer at Cisco whose identity was revealed after a lawyer he wrote about as a patent troll offered a reward for his unmasking.

These examples show that a lawyer should not feel safe to say anonymously what the lawyer would not feel free to say with attribution.

Another dimension to this involves Facebook, where lawyers can create restricted groups and therefore feel safer to speak their minds. If you are considering this option, make sure you educate yourself thoroughly on how to do it properly, advises Courtney Kennaday, practice management advisor for the South Carolina Bar.

Even then, she adds, "There's a strong caveat: don't count on Facebook's restricted groups to restrict everything. It is very difficult to know what types of items will slip through and be viewed by everyone."

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7. Watch the line between networking and soliciting
Lawyers sometimes walk a fine line between speaking their minds and soliciting clients. They have every right to do the former and a professional responsibility not to do the latter.

One ethics opinion found that a lawyer engaged in inappropriate solicitation when he posted comments in a chat room for mass-disaster victims. It is easy to imagine how a lawyer could get into similar trouble on Twitter.

Several states have either ethics rules or ethics opinions that specifically address the issue of solicitation in electronic communications. Protect yourself by knowing the rules and exercising common sense.

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6. Exercise editorial discretion – over yourself and others
Say nothing online that you would not want attributed to yourself on the front page of the New York Times. Do not assume that no one will read your blog or see your tweet. Once it is online, it is online forever and it can and will be found.

That does not mean that you cannot show personality or creativity, says Matthias Jung, director of Legal One Marketing in Houston. "It is good to let your personality shine through to your audience, but it is important to do so as if your mother or daughter were sitting there beside you."

However, that does mean to remember that clients and colleagues will read what you say. Lawyers sometimes seem to forget that their clients are following them online. If you would not say it to a client's face, do not say it online.

Not only are clients reading what you say, but they are judging what you say. Apart from the danger of saying something stupid, this raises another possible concern for lawyers whose clients are reading them online, says Eric Turkewitz, a trial attorney and blogger in New York City. "If you are frequently off-topic during working hours, they will wonder why you aren't working on their case."

If it is important to censor yourself, it is also important to censor others. "If you have a blog, make sure you approve all comments before they are posted," advises Lorraine Fleck, a trademark attorney and bloger in Toronto. "That was a great tip I got from a veteran legal blogger, which has prevented my blog from becoming a haven for those advertising fake Viagra."

Blogger and intellectual property lawyer Ronald Coleman sums it up this way: "Above all, accountability is key. Don't say it if you're not prepared to live it, or live with it. And if it's not something you can back up -- whether as a legal proposition or a factual assertion -- well, why would you want to say it in the first place?"

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5. Know your state's advertising rules
Every state has its own unique version of the rules governing lawyer advertising and solicitation. Some require that copies of ads be retained, including copies of Web pages. Others require specific disclaimers on ads.

Be sure you understand the rules in the state in which you are licensed and in every state in which your law firm has an office. Keep up with ethics opinions interpreting the rules.

           

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4. Avoid unauthorized practice
Avoid being charged with unauthorized practice by being clear about the geographic limits of your own license and about the geographic location of others with whom you communicate online.

"Protection against UPL ought to include disclaimers in online communications as to one's licensure and geographic limitation on practice," says James S. Bolan, a Boston-area lawyer who concentrates in professional-responsibility law. "Do not take on a relationship in a jurisdiction where one is not admitted."

Keep in mind that unauthorized practice can lead not only to ethics charges but also to loss of any legal fees billed for the work.

Avoiding unauthorized practice is often tricky but perhaps nowhere more so than in a virtual reality environment such as Second Life. If your avatar gives advice to another avatar, then in what jurisdiction are you practicing? Are you giving advice to the avatar or to the person behind it? In what jurisdiction is that person located?

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3. Don't give legal advice
A significant danger online is the unintended creation of an attorney-client relationship. Web sites such as LinkedIn or Avvo allow users to post questions and others to post answers. Simply by answering a question, a lawyer may be giving legal advice and creating an attorney-client relationship.

This can happen even through a simple exchange of e-mails. A Massachusetts ethics ruling said that a lawyer who received an unsolicited query from a prospective client through an e-mail link on a Web site was required to maintain the confidentiality of the information even though the lawyer declined the representation.

The best way to keep this from happening is to avoid saying anything online that might be construed as providing specific legal advice. If you do answer a question online, include a disclaimer saying that you are not providing advice.

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2. Don't talk about your clients or their cases
Consider the example of Kristine Ann Peshek. On her blog chronicling her work as a public defender in Illinois, she sometimes wrote about clients and cases. Although she never used a client's last name, she now faces disciplinary charges because authorities say her posts revealed enough information about her clients that others could identify them.

Peshek provided details about cases that some would say made her an extreme example. But even seemingly innocuous posts can get a lawyer in hot water. A simple status update on Twitter or Facebook could reveal your next move in a case to your opponent. Your tweet, "Drafting motion for summary judgment in federal court case I'm handling," could be all the warning the other side needs.

For anyone other than a sole practitioner, this may require running a conflict check before posting. You want to avoid writing about not only your own clients, but also about any of your firm's clients.

           

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1. Use common sense
It sometimes seems to be in short supply these days, but common sense is the best way to stay out of trouble. Apply it to everything you do online and you can probably forget all the other rules.

"While I'm a fan of policies," says consultant Mark Beese, "I tend to stick to a single maxim: Don't do anything stupid."

Common sense pretty much covers all the bases. It keeps you from saying something you'll later regret. It keeps you from crossing a line you shouldn't. It keeps you from getting into trouble in court, with a client or with the bar.

As Ron Friedmann, a lawyer, blogger and frequent speaker on issues pertaining to law practice management and technology, summed it up: "Lawyers should think before they hit enter."

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