Author: Gerald Potkin

Last April 15th, the US Department of Justice brought down the house of cards built by the three leading Internet-based poker companies serving United States customers. Suddenly, online poker operators were in a frenzy, bemoaning prior legal opinions that left them ill-prepared for the DOJ’s hammer that ended online poker bets in America summarily.

The indicted founders and some of their closest associates were knee-deep in legal troubles, resulting in hundreds of lawyers getting in on the action in all aspects of their businesses and personal lives.

As of the end of August, EOLIS has received reports from lawyers and law firms that indicate more than 40 million dollars in legal fees billed worldwide in connection with these matters. The numbers stand to rise exponentially, as the wheels churn ever so slowly through the system of justice.

Writing for the preeminent gaming newspaper, Wendeen Eolis said, “The ability to understand applicable laws that affect your business and the risks associated in interpreting them differently from the government can be critical to determining potential legal costs you may face.” In these cases, it is only lawyers who are winning.

Did our clients benefit from our advice in 2008 or are they sitting ducks for another cataclysmic event just around the corner? We warned in September 2008, and warned again today: plan on working on extra hour each day and allocate the time specifically to new client development, and then breathe a little easier!

In a series of phone calls to senior partners of national law firms around the country earlier this week, few lawyers feel comfortable without a handsome book of business these days. The world of law is a business, development of clients is a sales activity, and the art of holding them lies in the skills of a soft spoken advisor who can manipulate hot buttons.

Gone are the days when a service partner could feel secure, but a more recent change applies to rain makers: no longer can a rainmaker survive on making rain! Todays “the it” lawyer balances practice development with practice expertise, and treats nonbillable time as an extension of the day, not a part of it.

For law firms that learned these lessons in 2008, the cyclonic market of recent days is a little tamer for them than for the rest.

Since the waning months of 2008, when the law firm economy seemed to turn on its head, law firms have been debating how to assure prosperity in perpetuity like never before.

In May of each year, Eolis International Group surveys national law firms as to their lateral search priorities as part of a report to clients on the latest views in law firm strategic planning.

The May 2011 survey pulled us up short by showing a downward turn in the threshold of portable books of business required for consideration.  Wendeen Eolis, CEO of Eolis International Group, summed up a sentiment shared by at least 50% of the participating firms without regard to size.  She explained the turning tide, “Eight hundred pound gorillas frequently trigger peril to collegiality as often as they produce enviable prosperity.”

The majority of firm department heads in law firms (ranging from 75 to 200 lawyers) indicated they saw more value in an attorney’s commitment to a legal practice that combines new business development with in-depth legal expertise than in massive rainmaking efforts alone, or strictly service to a client.

In a round table discussion with six EOLIS clients, our moderator reported the sage words of a managing partner at one of the largest law firms in the world.  He said, “Show me a partner with a million dollars in client origination and a work ethic that produces 1,800 billed hours of high quality work, and I’ll show you a team player and a well balanced practitioner most of the time.”

Last month, The AmLaw Daily reported on a $1.5 million fee dispute between the legal recruiting company, Alan Miles & Associates and Bingham McCutchen, the law firm that acquired more than 100 lawyers from McKee Nelson, last summer.  In a final ruling dated May 17th, Miles was awarded nearly 1.9 million dollars including the full placement fee invoiced, interest and court costs.

In a written statement, reported by The AmLaw Daily, Bingham “remained as curious as ever in its interpretation of facts related to this case” says Wendeen H. Eolis, Chairman of Eolis International Group.

Ms. Eolis had more than casual knowledge about this case; she had been designated as plaintiff’s expert. The founder and former chairman of the Board  of The National Association of Legal Search Consultants,  and a certified employment consultant, Eolis summed up one of the fundamental business issues in the case; fuzziness as to whether or not the parties had a valid contract.

She cautions attorney search specialists who make contingency placements to be very meticulous in their dealings with law firms in their placement fee arrangements. “They will  save themselves one big headache by confirming the fee arrangements before the first appointment for every deal,” says this expert with with more than four decades of experience in the industry.

Ms. Eolis  also warns search firms of the pitfalls in  permitting the client to set up the fee/guarantee schedule for a recruiter’s services. She asks rhetorically “Would a law firm look to its client to draft the Firm’s engagement letter?”

In the instant matter, Miles took the long road to vindication, and was left to pay hefty legal fees, but David shamed Goliath, leaving Bingham to explain lamely, “Alan Miles & Associates demanded $5 million dollars and received $1.5 million.”  Ms. Eolis says her understanding of the facts was a bit different, noting that she had been advised by plaintiff and his counsel of the 1.5 million dollar invoice, and had been asked to consider, as part of her preparation as an expert, the reasonableness of a 1.5 million dollar fee and not a 5 million dollar fee.

She also commented that Bingham parsed information pertaining to the outcome of the case by saying that Alan Miles received $1.5 million based on the award published by retired US District Court Judge Lourdes Baird, the arbitrator in the dispute.  Miles not only received a ruling that provides for payment of its full placement fee for which they had invoiced the firm, but also for interest and court costs of another $380,000 plus.

Based on her lengthy experience and expertise in arbitrating search fee disputes she zeroed in on a key part of  Bingham’s strategy; a claim of no contract due to a stale  fee agreement that should not be applied.  After reviewing the matter, Eolis  concluded that the plaintiff’s  development of the case was more about industry practices well-known to the law firm and a common sense analysis of the facts.  Eolis quipped,  “The defendant did a great job in proving my position! The plaintiff  focused strictly  on the facts. And plaintiff counsel  integrated  defendants defense and plaintiff’s facts to win the day.  For Eolis, the case ended as a walk in the park  and no need for testimony on her expert report.

EOLIS said, “As plaintiff’s  consultant I put on the table the  customs and practices in the industry that the defendant had  attempted to circumvent or subvert in an effort to justify refusal to pay.  The winning strategy was the one two  punch of Miles and his counsel; together they exposed  Goliath’s bullying  tactics as a mere camouflage of simple facts that supported full payment of the fee plus interest and more.

According to Mr. Miles, he never considered backing away from a fight, if necessary, given his certitude that he was entitled to be paid the fee he had earned.  We agree.

The candidate, the candidate’s spouse, colleagues and recruiters generally agree that in this competitive market one needs the right elevator pitch with an appropriate underpinning — “a do everything resume”–to get ahead. But, being all things to all people is just plain impossible.

This leaves the job-searching lawyer with the unique conundrum of meeting the highest standard of integrity as required by his admission to the bar, balanced by the most creative thinking worthy of accolades by pre-eminent public relations houses.

The inclusion of four critical documents in the job search candidate’s  toolbox pave the way: (1) a factual (if boring) recitation of basic information  sought by every human resources executive on the planet, (2) a concisely presented work matter addendum that sets forth precisely, accurately, and inclusively the critical information a  decision maker wants to see, (3) a talking point memo for friends and recruiters to use in recommending you, and (4), a journal for interview preparation that reminds you of the major decisions made in your career and the reasons for them.

The “decisions” document is your personal primer for answering all of the hard questions that will come your way.

Since the late 60’s Eolis International Group has been a proponent of legalized gaming, with specialized services to commercial casinos and tribal gaming properties in the United States and overseas.  And since the 90’s, when Eolis International Group CEO Wendeen H. Eolis served as Senior Advisor to Governor George E. Pataki on gaming issues in New York State, we have supported the need for consumer protections, endorsing licensed, taxed, and regulated gambling activities.

Noting the potential services that the government could provide from the influx of significant tax revenues into the economy as well as a commitment to civil liberties, Ms. Eolis has in recent years  been a champion of  federal legislation that would allow adults to play poker in their favorite cyberspace card room.

Since 2006, the Unlawful Internet Gambling Enforcement Act has undermined civil liberties by insisting that Uncle Sam should be the arbiter of responsible gaming–attempting improperly to pigeon hole poker into a game of chance to dangerous except in the confines of brick and mortar casinos where it is routinely offered side by side with other adrenaline-filled games in which chance is the more dominant factor.

Like any responsible company that serves the gaming space, EOLIS is concerned about underage gambling, and opposes gambling operations that disregard the need to offer assistance to addictive gamblers, but history shows that a commitment to responsible gaming is better than the underground gambling that is inevitable when prohibition is the law.

Over the past five years since the passage of UIGEA, EOLIS has counseled casinos on the likely prospects of almost instantly doubling their revenues by the introduction of online gaming.  Not surprisingly in recent months, we have been consulted by casinos and investment banks and other potential purchasers interested in cooperating with online gambling sites–poised to snap up huge customer bases and turn key operations as soon as Congress sees the light at the end of the tunnel–huge $$$ signs in licensed, taxed and regulated online gaming.

At the Monaco iGaming conference of 2010 in Monte Carlo, Ms. Eolis forecasted an inevitable shift in the perception of poker from a game of chance to a pursuit of skill, and the demise of the Unlawful Internet Gambling Enforcement Act of 2006—but not as a prospect for  2010.

While many lobbying groups predicted that Senate Majority Leader Harry Reid would push through favorable legislation that would unhinge poker from the grip of UIGEA, Ms. Eolis insisted Mr. Reid’s support of online gambling remained superficial awaiting further unification of the powerful casino operator constituents in his home state of Nevada.

Now, there is obvious growing unity and the machinations to move online gaming front and center are brisk at the state level with Nevada legislation underway and judging by the loud noises inside the Beltway, Republicans traditionally opposed to online gaming are rethinking their positions–John Kyl and Spencer Bachus, the new Chairman of the Financial Services Committee, among them.  A Washington D.C- based gaming lawyer says, “They are both reportedly moved by the evidence of poker as a game of skill.” Could the prospect of bipartisan support for online poker, loom larger than ever on the horizon?

Wendeen Eolis says for the first time in years, the excitement in the poker community has a solid foundation, predicting now that it is only a matter of time, not a question of whether or not online poker will be treated as a legitimate activity by the United States Department of Justice.

In recent weeks, Caesars Entertainment Corp. has cut a deal with 888 Holdings PLC and Wynn Resorts Limited has cut a deal with PokerStars that looks to a level of cooperation that is likely to produce windfalls not only for the casinos that Ms. Eolis predicted last fall would benefit in the coming years, but also for online companies that have taken bets from American players including PokerStars, the most aggressive online gambling company in the world.  All we need now is amnesty for companies that have flown in the face of the U.S. justice department’s negative views, so as to allow adults in America unimpeded freedom to play poker at their computers–in pajamas if they wish.

Teatime at the Plaza Hotel in New York City is a uniquely fancy experience.  But visits by the hoi polloi, including society matrons and other high falutin’ ladies who lunch, do not guarantee that your smartly plated food will not be contaminated.

In the incident reported to us by an EOLIS executive, it was luscious strawberries and cream cheese, or maybe just plain strawberries that were the culprit; an insect contently nestled under a strawberry, much to the diner’s dismay.  The tearoom’s maitre d’ went on the defensive instantly, questioning the guest’s first-hand knowledge of the creeping insect that suddenly sped off to a low flying cloud as the diner and a server watched in disbelief.

The cleanliness of the establishment is not necessarily defined by the prices on the menu, and consumers are routinely at risk for falling ill.  Rarely considered, but ever present, are the real perils for New Yorkers who dine out, whether it be at a neighborhood bistro or an upscale and refined tearoom. While the legal issues that may come into play in your next restaurant visit may be about negligence, food poisoning is but one potential problem diners can face when they go out to eat.  Lost coats, beverage spills, and personal injuries can trigger disputes, too.

The more rampant issue that spurs lawsuits, however, is inconsiderateness, arrogance, and an utter disregard of the kitchen and the front of the house towards diners who are put at  risk. From a lay person’s perspective, the Plaza’s conduct in the instance reported to us is reflective of a company running scared when good manners are their best defense against litigation.  So for all of those restaurants that would prefer to bully the patron as to their credibility, our office will be happy to assist them in the retention of tort counsel.  One way or another, the negligent  restaurant  will likely  prove itself penny-wise and pound- foolish in just adding the insect to the offended customer’s tab.

EOLIS consultants advise clients as to when they may have an immediate need for special counsel in all major legal disciplines.  For those who are curious about negligence claims, the New York law firm of Rottenstein LLP advises “You need to have the following four elements: (1) duty (2) breach of that duty (3) causation of harm, and (4) damages.”  If you get sick from food that you ate at a restaurant, you may be able to seek compensation for medical bills, lost wages during your illness and recovery, as well as for your pain and suffering.

In the Plaza teatime incident, if the customer had fallen ill, showing causation of harm would be a simple matter of snapping a cell phone picture of the insect, the server witness, and later, the dismissive maitre d’.

NEW YORK (February 14, 2011)   “Do as the Romans do!” So say some of our colleagues about the increasingly relaxed dress rules for lawyers.  For women, especially, the unwritten rules of yore (requiring them to dress even more conservatively than men) have virtually collapsed, thanks to the potent impact of First Fashionista Michelle Obama and her cardigan sweater fans.

It is not so clear that a routine of business casual is the safest bet for an aspiring partner or a rising one for that matter, either when trotting off to a law firm beauty contest—no matter the dress of the potential client or even that of the firm’s 800 pound gorilla who will lead the charge –with a portfolio of ten million dollars of business in the left pocket of his cashmere blazer.

In informal interviews with more than 100 corporate counsels on lifestyle issues in the workplace, Eolis International Group has learned that a gray pinstripe suit, white shirt, and medium blue or burgundy tie for men, and a black or navy suit with a silk shell or blouse ensemble offends none of them but deviations from a strictly conservative uniform affects the evaluation of a pitch for business among nearly 10% of their ranks.

The reasons as well as the extent to which they express reservations—due to sartorial choices–are quite varied, but the idea that the prospective client should just deal with it can cost a representation.

Meetings deserve a conservative uniform unless there are compelling reasons (such as the host’s explicit request) otherwise.  Why not minimize the possibility of causing a potential engagement that would otherwise fly to crater?