Guttman, Buschner & Brooks

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Professionalism Makes Sense

This thing called “professionalism”

Law schools teach professionalism as if it were a code of morality for an elite club called the bar. Newly minted members of the club sometimes (perhaps too often) hear the words “professionalism” or “professional” foisted upon them by more longstanding members. The words are used perhaps as a brush-back pitch to new lawyers, who live in fear that the license they worked so hard to acquire will be expropriated before it is put to productive use.

Professionalism, of course, is a conclusory term, a label, that perhaps has been used so many times and in so many ways it is now a shell of a word that, when used in a critique, often leaves the alleged perpetrator wondering what he or she did wrong.

As lawyers, we manage the resolution of conflict or the avoidance of conflict. Lawsuits are about resolving conflict, while the execution of contract, for example, is about avoiding it. Of course, advocacy is a significant component of what we do; being an advocate can, no doubt, draw a lawyer into the conflict.

Yet, professionalism means behavior that keeps the lawyer from becoming part of the conflict, exacerbating the conflict, or closing channels that might be used to resolve the conflict. Remaining apart from the conflict is, unfortunately, no simple task; consider the tension created by bar rules that require a lawyer to “represent a client zealously and diligently within the bounds of the law.” [1] Consider that clients too often want their lawyer to feel their pain or disdain the opposition and most particularly their counsel. There are those clients who hire their lawyers to be bulldogs ; for their part, these lawyers may play that role to win the client’s continued confidence even when the case is headed south. And for lawyers who don’t go into a case seeking to play the bulldog, their opposition may be so frustrating or obstreperous that the response is bulldog behavior.

The late George Barrett of the Nashville firm of Barrett Johnson Martin & Garrison, LLC was a leading civil rights lawyer of his day and championed causes that, at the time, were unpopular. Barrett once noted, “I was glad to manage protest routes and get Vietnam demonstrators out of jail, but I won’t march with you. I think a lawyer has to decide.”[2] In 2014, when Barrett passed away at the age of 86, Nashville Mayor Karl Dean said, “George Barrett was larger than life and always willing to take up an unpopular cause if he felt it was the right thing to do.”[3] Barrett understood what professionalism meant.

Professionalism means keeping in mind that 99 percent of all cases settle or are resolved before trial and there may be a day—perhaps at the end of a deposition—where you or opposing counsel might say, “Maybe we should talk about whether there is a way to put this dispute to rest.” How do you have that discussion without a relationship with the other side? How do you have that discussion if the entire pretrial process has been consumed with personalized disputes between opposing counsel?

Setting aside the matter of an ultimate resolution, opposing counsel need to work with one other to create efficiencies in the litigation process. Professionalism greases the way for dialogue about document production; stipulations as to admissibility; or shortcuts to resolve disputes, including bifurcation, bellwether trials, and capping or putting floors on damages.

Professionalism also means resisting the temptation to meet your opposition’s bulldog behavior with that of your own. It means lowering the temperature between counsel. Consider a deposition where your opposing counsel is being obstreperous, making speaking objections, and coaching the witness. If the conduct persists, the matter may have to be taken to the judge. But does burdening the record with arguments over the obstruction make the record any clearer for court review? Or will such argument just detract from the goal of the deposition, which is to get information? If you ignore obstreperous counsel, are they more likely cease their conduct? Perhaps so.

And professionalism means acting in a way that makes the judge’s job easier, including giving your opposition an opportunity to complete a full argument, as opposed to interrupting. Using court hearings to personalize attacks on opposing counsel do little to curry favor with the court and only polarize a relationship with the opposing counsel, whose help you will need to resolve the case.

In an era in which we give attention to psychological well-being in the workplace, professionalism is also about lowering stress, which comes from dialing down the temperature between opposing counsel. It means understanding that being a zealous advocate is not inconsistent with being an honest and respectful opponent, a mensch.

Eventually, there will be a client who questions your decency. You might be accused of not being mean enough. Professionalism is also about educating the client on the style you will use to make the case more efficient, avoiding needless battles. The education process starts at the first meeting and continues throughout the retention.

For those teaching professionalism, it is not something that can be taught in a book or tested by written exam. It is something more suited to experiential learning, which may include simulated negotiations over pretrial matters, mock depositions, or oral arguments. However it is taught, students must understand that while professionalism is thematically about ethics, it is also about practice and efficiency.

[1] See, e.g., DC Bar Rule 1,3 Diligence and Zeal.

[2] See Profiles in Justice: A distinguished lawyer and friend – The Global Legal Post.

[3] Id.

Source: National Institute For Trial Advocacy

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Whistleblowers and fears of losing funds key to enforcing U.S. vaccine rules

Workplace whistleblowers and a fear of losing federal funds are expected to play vital roles in ensuring compliance with COVID-19 vaccine mandates ordered by President Joe Biden’s administration for U.S. businesses, nursing homes and hospitals, according to experts.

Biden announced last Thursday that his administration will enforce the vaccine mandates starting on Jan. 4. The rules apply to employers with at least 100 workers, federal contractors and employees of nursing homes and other healthcare facilities that receive reimbursements under the Medicare and Medicaid government healthcare programs.

On Saturday, a federal appeals court suspended the new vaccine and testing requirement for private companies while the court considers it in more depth. It gave the Justice Department until late Monday to respond. The portion of the mandate for the healthcare sector is not affected by Saturday’s ruling.

If the rule goes into effect, the U.S. Occupational Safety and Health Administration (OSHA), which enforces work safety rules, is not likely to immediately swoop in to ensure that vaccination and testing rules are being followed, experts said.

The Centers for Medicare & Medicaid Services (CMS), the regulator for the two federal health programs, does not typically survey accredited healthcare providers unless there is a complaint or a need for recertification, according to Sandy DiVarco, a partner at the firm McDermott Will & Emery who represents healthcare providers.

Since patients and clients do not have access to staff vaccination records, those complaints would likely come from another staff member, DiVarco added.

“On a stakeholder call, CMS reiterated their desire to work with providers to come into compliance and not to sort of send SWAT teams to go out and look for problems,” DiVarco said.

Healthcare facilities could lose their access to Medicare and Medicaid funds if they fail to heed the vaccine requirements. Medicare serves people aged 65 and older and the disabled while Medicaid serves the poor.

“For most hospitals across the country not being able to participate in Medicare would be crippling,” said Akin Demehin, the American Hospital Association’s director of policy.

The healthcare workers mandate applies to more than 10 million employees, around 70% of whom already have been vaccinated. It covers around 76,000 healthcare providers that receive Medicare or Medicaid reimbursements including hospitals, nursing homes, dialysis centers, ambulatory surgical settings and home-health agencies.

For the private employer rules, OSHA has an estimated 800 safety and compliance inspectors to cover more than 100,000 companies covered by the mandate. The agency likely will rely on whistleblowers concerned about unvaccinated co-workers or that unvaccinated people are not being tested as required, said James Hermon, a labor and employment expert with the firm Dykema Gossett.

Hermon predicted that OSHA will hit a couple of big employers with major fines soon after the mandate takes effect.

“That will be done intentionally to put some virtual heads on spikes,” Hermon said. Each violation can bring a fine of nearly $14,000.

The financial threat from a federal law called the False Claims Act, which rewards whistleblowers for reports of fraud that results in losses for the government, might ensure compliance with the vaccine rules better than OSHA’s penalties, according to one expert.

“We’re interested in these cases and we’ve been looking at them,” said Reuben Guttman, a whistleblower lawyer with the firm Guttman, Buschner & Brooks, who said he has been talking to unions. “The idea of using the False Claims Act to enforce health and safety standards is not novel.”

(Reporting by Diane Bartz, Ahmed Aboulenein and Tom Hals; Editing by Will Dunham)

Source: https://kfgo.com/2021/11/08/whistleblowers-and-fears-of-losing-funds-key-to-enforcing-u-s-vaccine-rules/.

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Reuben A. Guttman, District of Columbia Fellow, Co-Publishes “Pretrial Advocacy”

District of Columbia Fellow Reuben A. Guttman has co-authored a new book, “Pretrial Advocacy,” to be released by the National Institute for Trial Advocacy (Now available here). The volume, which was also written by Rutgers Professor J.C. Lore, discusses the “unwritten rules” of pre-trial preparation and grapples with the challenges of efficiently developing cases that can stand up to jury scrutiny in the face of overflowing demand, even though 90% of civil cases never make it to trial.

If anybody is qualified to talk about effective legal advocacy, its Reuben Guttman. The Guttman, Buschner & Brooks founding partner has spent his 36-year career releasing staggering sums of money from the grasps of oil refineries, pharmaceutical organizations, and prisons who have run afoul of laws such as the False Claims Act and the Federal Fair Labor Standards Act. Mr. Guttman, who started his legal career as counsel for the Service Employees International Union, AFL-CIO, is a whistleblower’s best friend—in 2015, he helped Florida’s Lynn Szymoniak gain an $18 million settlement after she uncovered a fraudulent foreclosure scheme that threatened to undermine her own housing and that of thousands of other homeowners.

In addition to being a legal superstar, Mr. Guttman is a familiar figure in the academy and the press. When he isn’t giving his time to Emory University School of Law as an adjunct professor, journal advisor, or board member, he’s writing for or being quoted in more than 30 journals and media outlets as varied as The New York Times and Peking University Public Interest Law Journal. Mr. Guttman’s international influence stretches from the U.S. federal government, where he has testified before Congress and advised President Clinton’s transition team, to as far away as China, where he has offered his thoughts on Chinese labor laws at the Dutch Embassy and lectured at universities in Shanghai and Beijing.

Source: American Bar Foundation.
Book Available here.

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Book: Non-state Actors in China and Global Environmental Governance

This book is the first effort to develop a broad and deep perspective on the emerging space occupied by “non-state actors” in China in the context of global environmental governance.  It will serve as a primer both for scholars seeking to understand China’s environmental governance system and for practitioners working with policymakers and administrators within that system. Individual chapters explore what works in achieving social change, domestically as well as globally, and will provide guidance to activists and directors of NGOs as well as scholars.

Authors: Dan Guttman, Yijia Jing and Oran Young.

Dan Guttman, an attorney with GBBLegal, is a lawyer and former public servant who has devoted his career to issues of public policy. Since arriving in China as a Fulbright scholar in 2004, he has taught and developed comparative China/western governance courses and programs at Shanghai Jiao Tong, Peking, Tianjin, Tsinghua, and Fudan Universities and taught at Duke Kunshan University and New York University Shanghai. 

Yijia Jing is a Chang Jiang Scholar, Dean of the Institute for Global Public Policy, and Professor of the School of International Relations and Public Affairs, Fudan University.

Oran Young is professor emeritus and co-director of the Program on Governance for Sustainable Development at the Bren School of Environmental Science & Management at the University of California Santa Barbara.

Learn more or purchase here.