Seminar on Online Reputation Management (ORM) for Lawyers


Seminar on Online Reputation Management (ORM) for Lawyers in Washington, DC a success
Online Reputation Management has become a crucial issue for sole attorney practitioners and small law firms.
Business Consultant Terik Hashmi taught a one-day seminar in Washington DC on July 8 at a convention hotel, specifically for lawyers on how to manage their Online Reputation.
Online Reputation Management (ORM) has become a major issue, especially for sole practitioners and small law firms. With today’s internet, it has become very easy for anybody, not just actual clients, to post negative information about lawyers. In fact, the overall impression is that most comments and reviews are at least in part negative. Combined with economic pressures, this has created an issue of utmost importance to legal practitioners.
“Online Reputation Management is an issue that attorneys cannot disregard,” explains Mr. Hashmi. “I have been in the profession long enough to have seen what has happened since the early 1990s. The problems for the profession result in large part from law schools cranking out too many lawyers, and the internet developing and creating free or low-cost alternatives to lawyer services such as free websites with all kinds of legal information.”
The about 30 participants had many questions and concerns, including:
-“What to do about negative comments on review sites such as Yelp.” Mr. Hashmi in general recommends not to voluntarily engage with such sites because there are always the so-called “vandals” who post negative information just for the sake of posting negative information (cyber vandalism). Previously, vandals spray-painted subway trains. Today they post negative comments on the internet.
-“I do not have time to keep up with the internet.” Mr. Hashmi responded that this attitude carries great risks as life on the internet goes on regardless. One may not even notice what information is being posted on the internet, and only wonder why income is going down. In many cases, the answer can be found by googling one’s name.
-“What to do if an attorney as been sanctioned by the bar or a court (reprimand/suspension).” Today, in the age of the internet, the attorney disciplinary system has become a serious problem especially for sole practitioners and small firms, as disciplinary sanctions such as reprimands or suspensions are published widely on the internet and never go away. Consumers “research” on the internet, meaning they run a Google search. Hundreds of attorneys are sanctioned every month by the disciplinary systems, and many bar associations publish these sanctions on their websites and in press releases. The result is that they appear at the very top of any Google search. This situation is aggravated by the fact that most attorneys are focused on running their law practice and have no positive information published to counterbalance the negative posts.
Mr. Hashmi has researched these issues for many months, and has interviewed many experts in online reputation management, reputation management companies, and practicing attorneys. He is preparing a book based on his research, which will be published in the coming weeks.
About
Terik Hashmi is a business consultant serving businesses in the marketing realm. Among his clients is an Online Reputation Management company. He previously published a book on successfully applying for jobs (published by TIA publishers, Germany, available on www.amazon.com). He holds two bachelor degrees in Political Science and in Diplomacy & Foreign Affairs (Miami University, Ohio), a Juris Doctor from Cleveland-Marshall College of Law (Cleveland, Ohio), and a Master of Laws (LL.M.) from McGeorge School of Law (Sacramento, California). He has assisted notable businesses and people, including former President of Venezuela, Carlos Andres Perez, to prevent his forced removal from the U.S. and potential execution at the hands of Venezuelan strongman Hugo Chavez. Terik Hashmi is a former Professional Basketball Player during the 1988-1989 season (European A League – “Club Centz” Luxembourg), where he had the opportunity to compete and travel throughout all European nations.
His profile is at: https://solomonlawguild.com/
Additional news about Terik Hashmi can be found at:  https://attorneygazette.com/terik-hashmi%2C-consultant#63a6f99b-e82f-47bb-bfc9-8349f91933f4
 

**** Terik Hashmi is a business consultant serving businesses in the marketing realm. Among his clients are a medical service provider and an Online Reputation Management company. - Attorney Website at: https://terikhashmiattorney.com/ - Attorney Profile at: https://solomonlawguild.com/terik-hashmi%2C-esq# - Attorney News at https://attorneygazette.com/terik-hashmi%2C-consultant#eec97f53-49a0-4c94-869a-4847514cb694

Miami-based business consultant Terik Hashmi announced the completion of his study & book on Online Reputation Management (ORM), specifically for lawyers.


Miami-based business consultant Terik Hashmi announced the completion of his study & book on Online Reputation Management (ORM), specifically for lawyers.

At the pre-publication reception at an art Galleria in the chic Garment District of Miami, Mr. Hashmi announced that the book will be available soon on Amazon and other outlets.
“I noticed a particular need for more information about Online Reputation Management for Lawyers,” explained Mr. Hashmi at the event. “Being an attorney by training myself, I have seen first-hand what the internet has done to the entire profession. First of all, even while the economy was under pressure to cut costs in the 1990s, law schools continued to mint new lawyers. Then the internet took flight, creating lawyer-substitutes such as Legalzoom that increase the pressure on the profession. And as if that was not enough, now everybody can post negative opinions about attorneys anywhere on the internet, from Yelp to setting up a hate blog about lawyers. If you are a lawyer, how do you deal with that?”

Mr. Hashmi has spent months researching this book and conducting countless interviews with practicing attorneys and professionals in the area of Online Reputation Management (ORM). Among his findings were, as to Online Reputation Management, that most attorneys focus on comments posted about them rather than positive information in general. The result is that an attorney about whom a negative comment has been published attempts to rectify the situation, rather than publicizing positive information that will have a tendency to supersede any negative comment. The conclusion is that it is difficult to improve one’s reputation with online comments. There as to be substance that is recognized by search engines such as Google as "valuable" to other users. “Content is more important than Comment,” quipped Mr. Hashmi.

Another conclusion is that no practicing attorney can neglect his or her online reputation. Explains Mr. Hashmi: “Just one look at job ads on Craigslist shows you the economic pressure on the legal profession. You’ll see attorney jobs advertised at $22 or $25 per hour. It is hard to make a living at such rates with a $100,000 in student loans. If you add bad online reputation to the mix, the result is that you cannot make money in law. Thus, you must address your online reputation unless you chose to wear a scarlet letter in public and be broke.”

Mr. Hashmi thanked in particular his editor, Timeless Words. The book is expected to be available on www.amazon.com shortly.

About

Terik Hashmi is a business consultant serving businesses in the marketing realm. Among his clients are a medical service provider and an Online Reputation Management company. He previously published a book on successfully applying for jobs (published by TIA publishers, Germany, available on www.amazon.com). He holds two bachelor degrees in Political Science and in Diplomacy & Foreign Affairs (Miami University, Ohio), a Juris Doctor from Cleveland-Marshall College of Law (Cleveland, Ohio), and a Master of Laws (LL.M.) from McGeorge School of Law (Sacramento, California). He has assisted notable businesses and people, including former President of Venezuela, Carlos Andres Perez, to prevent his forced removal from the U.S. and potential execution at the hands of Venezuelan strongman Hugo Chavez. Terik Hashmi is a former Professional Basketball Player during the 1988-1989 season (European A League – “Club Centz” Luxembourg), where he had the opportunity to compete and travel throughout all European nations.



**** Terik Hashmi is a business consultant serving businesses in the marketing realm. Among his clients are a medical service provider and an Online Reputation Management company. - Attorney Website at: https://terikhashmiattorney.com/ - Attorney Profile at: https://solomonlawguild.com/terik-hashmi%2C-esq# - Attorney News at https://attorneygazette.com/terik-hashmi%2C-consultant#eec97f53-49a0-4c94-869a-4847514cb694

In copyright infringement case against German media conglomerate, Ninth Circuit rules that, in civil case in which party seeks outright disclosure of attorney‑client communications under crime‑fraud exception: (1) both parties have right to present evidence to district court, and (2) party seeking disclosure must prove by preponderance of evidence that exception applies; and (3) on facts of this case, Plaintiffs have not established crime‑fraud exception


In copyright infringement case against German media conglomerate, Ninth Circuit rules that, in civil case in which party seeks outright disclosure of attorney‑client communications under crime‑fraud exception: (1) both parties have right to present evidence to district court, and (2) party seeking disclosure must prove by preponderance of evidence that exception applies; and (3) on facts of this case, Plaintiffs have not established crime‑fraud exception

In the main litigation transferred to a California federal court, UMG Recording, Inc. and nineteen other media companies and individuals (Plaintiffs), sued Bertelsmann AG (Defendant), a German media conglomerate, along with Bertelsmann, Inc. and seven other Defendants, both individuals and partnerships. Many of the copyright issues raised arise out of the demise and bankruptcy of Napster, the online file‑sharing music service also pending in the same court.

The complaint asserted Defendant’s vicarious and contributory liability for alleged copyright infringement based on Defendants’ substantial loans to Napster which thereby involved itself in Napster’s alleged infringements of Plaintiffs’ copyrights.

Plaintiffs alleged, inter alia, that Napster’s service facilitated the unauthorized reproduction and distribution of copyrighted digital music files. In July 2000, the district court ordered Napster to search for, and remove from its service, files that rights holders had identified as infringing. The Ninth Circuit substantially affirmed in February 2001.

Napster’s service was shut down in July 2001 after it failed to comply with the terms of a modified preliminary injunction. In June 2002, Napster filed for bankruptcy before the courts had ruled on its ultimate liability for copyright infringement.

Between October 2000 and October 2001, Defendant lent Napster about $85 million to finance its looked for transition to a licensed digital music distribution system. Napster failed fully to launch the new licensed system, however, before declaring bankruptcy. Defendant did not come away with Napster’s assets in the bankruptcy proceedings.

In April 2003, Plaintiffs and others separately filed suit against Defendant in a New York federal court, claiming that Defendant was vicariously and contributorily liable for copyright infringement by Napster and/or Napster’s users. More particularly, Plaintiffs claimed that, by lending Napster millions of dollars, Defendant took effective control over Napster’s infringing file‑sharing service, and prolonged its allegedly unlawful operations.



The plan was seemingly to avoid the loss of Napster’s 40 million or so users before the new licensed digital music distribution system became functional. The Multidistrict Litigation Panel transferred Plaintiffs’ suits against Defendant to the Northern District of California, where the In re Napster, Inc. Copyright Litigation was pending.

Defendant moved to dismiss Plaintiffs’ suits for failure to state a claim in July 2003. It argued that, as a matter of law, merely lending money to an alleged copyright infringer cannot give rise to liability under either a vicarious or contributory copyright infringement theory. Defendant further contended that its loan did not enable it to take control of Napster. The district court denied Defendant’s motion.

In November 2005, Plaintiffs moved to compel Defendant to produce all attorney‑client communications relating to a $50 million loan, convertible to equity, that Defendant had made to Napster in October 2000 while Napster was appealing the initial preliminary injunction.

Plaintiffs charged that, starting in September 2000 when drafting of the loan documents began, Defendant had taken part in a continuing scheme to defraud the courts. They argued that the crime‑fraud exception to the attorney‑client privilege applied to these communications relying on two theories of “fraudulent deceit” as defined in the California Civil Code.

First, Plaintiffs argued that Defendant’s “loan” to Napster was not in fact a loan. Instead, it consisted of cash tendered in exchange for an equity stake in the company. According to Plaintiffs, Defendant had its lawyers create sham loan documents aimed at disguising what was, in reality, a purchase of control over Napster. Plaintiffs further charged that Defendant, looking to future copyright infringement litigation, planned to use the spurious loan documents to hoodwink the courts into deciding that it was not an equity owner and thus was not liable for Napster’s wrongful actions.

In support of its “sham loan” theory, Plaintiffs pointed to several pieces of circumstantial evidence. They cited internal Defendant documents showing that the company’s executives and outside counsel tried to structure the transaction in such a way as to avoid copyright liability.

Moreover, by its express terms, the $50 million loan was convertible to equity in Napster in lieu of repayment once the licensed digital music distribution system got off the ground. In one e‑mail, for instance, counsel for Defendant stated that the “loan has to look like a loan, otherwise it will be characterized as equity and [Defendant] may have liability for copyright infringement in the minds of some lawyers.”

Under their second fraud theory, Plaintiffs contended that Defendant, through its lawyers, was trying to defraud the courts by omitting from the loan documents a secret “side agreement;” it allowed Napster to channel some of the $50 million into paying Napster’s litigation expenses. Plaintiffs argued that Defendant stood to benefit if continuing litigation allowed Napster’s existing service to stay operational until the anticipated new system was in place, thereby avoiding dispersion of the customer base. Plaintiffs cited several e‑mails in support of this theory plus other circumstantial evidence gleaned from discovery depositions.


In opposition, Defendant protested that evidence that it structured a corporate transaction to limit its liability did not prove either that the loan documents were a sham or that they were meant to defraud the courts. Defendant further contended that there was no such thing as a secret side agreement about litigation expenses. It cited various items of testimony in discovery depositions and elsewhere to support its position.

On April 20, 2006, the district court issued an order compelling Defendant to reveal all attorney‑client communications which had to do with the creation of the loan document and the use of that loan document in the bankruptcy proceedings and before the district court. The court held that Plaintiffs had made out a “prima facie” showing that the crime‑fraud exception applied under Ninth Circuit precedent, describing this test as “quite lenient.”

The lower court also ruled that, in deciding whether the crime‑fraud exception applied, it “need only consider the evidence offered by the moving party,” and that it does not have to take into account “conflicting evidence offered by the party seeking to uphold the privilege.” The court cited several items of evidence offered by Plaintiffs and said that, in any event, Defendant’s counter‑evidence would not have persuaded it.

After assessing the facts, the district court upheld the Defendant’s privilege and rejected the Plaintiffs’ crime or fraud contentions. Plaintiffs then filed an interlocutory appeal and a petition for mandamus. On March 14 , the U.S. Court of Appeals for the Ninth Circuit reverses and remands.

The underlying litigation being far from yielding a “final judgment” under 28 U.S.C. Section 1291, the Court of Appeals concludes it has appellate jurisdiction under the “collateral offshoot” doctrine. The issue in this interlocutory appeal is whether Plaintiffs may invade Defendant’s attorney‑client privilege because Defendant used, or intended to use, its counsel to commit a fraud on the courts.

“We conclude that the attorney‑client privilege issue presented in this interlocutory appeal is ‘completely separate from the merits of the action.’ That is, the privilege issue is ‘too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.’ Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949).” The Court, therefore, need not reach the questions posed by the mandamus petition.

The Court then launches on the thorny questions presented. “The attorney‑client privilege is the oldest and arguably most fundamental of the common law privileges recognized under Federal Rule of Evidence 501. See United States v. Zolin, 491 U.S. 554, 562 (1989). The assurance of confidentiality promotes open attorney‑client communications, which are ‘central to the legal system and the adversary process.’ United States v. Hodge & Zweig, 548 F.2d 1347, 1355 (9th Cir. 1977). The attorney‑client privilege protects fundamental liberty interests by allowing individuals to seek the legal advice they need ‘to guide them through [the] thickets’ of complex laws. United States v. Chen, 99 F.3d 1495, 1499 (9th Cir. 1996).”


“Notwithstanding its importance, the attorney‑client privilege is not absolute. The ‘crime‑fraud exception’ to the privilege protects against abuse of the attorney‑client relationship. Hodge & Zweig, id. As the Supreme Court wrote in Clark v. United States, 289 U.S. 1 (1933), ‘The privilege takes flight if the relation is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told.’ Id. at 15.”

“The attorney need not have been aware that the client harbored an improper purpose. Because both the legal advice and the privilege are for the benefit of the client, it is the client’s knowledge and intent that are relevant. [Cites]. The planned crime or fraud need not have succeeded for the exception to apply. The client’s abuse of the attorney‑client relationship, not his or her successful criminal or fraudulent act, vitiates the privilege. [Cite]. Despite the fundamental importance and long history of the attorney‑client privilege and the crime‑fraud exception, the procedures for preserving the privilege against a crime‑fraud challenge are surprisingly unclear.”

“Among [the unanswered questions are], first, what procedures are to be followed when an order to compel outright disclosure (rather than in camera review) is at stake? Second, what is the burden of proof on the party seeking to compel outright disclosure under the crime‑fraud exception?”

“The two questions relevant to this appeal are subsets of the questions noted above that were left unanswered by Zolin. First, in a civil case, should the district court consider not only the evidence adduced by the party seeking to vitiate the attorney‑client privilege by invoking the crime‑fraud exception, but also the evidence adduced by the party seeking to preserve the privilege? Second, in a civil case, what is the burden of proof for the party seeking to establish the crime‑fraud exception? We address these questions in turn.”

“We begin our analysis with Zolin, in which the Internal Revenue Service sought to vitiate the attorney‑client privilege under the crime‑fraud exception. The question in Zolin was whether a party seeking to establish that the crime‑fraud exception applies must rely entirely on sources independent of the disputed attorney‑client communications, or whether a district court ‘may ever honor’ a request that it conduct in camera review of some of the communications to assist in the determination that the privilege has been vitiated. Zolin supra, at 560‑61, 565.”

“The Court first looked to Federal Rule of Evidence 104(a), which provides that ‘[p]reliminary questions concerning . . . the existence of a privilege . . . shall be determined by the court . . . . In making its determination it is not bound by the rules of evidence except those with respect to privileges.’ Zolin, supra at 565. Neither [side] in this case requested that the district court conduct in camera review of the disputed communications.”



“We have never squarely ruled on the question whether a party in a civil case, seeking to preserve the attorney‑client privilege against a crime‑fraud challenge, has the right to present countervailing evidence when the district court is deciding whether to order outright disclosure. ...We hold that in civil cases where outright disclosure is requested, the party seeking to preserve the privilege has the right to introduce countervailing evidence. In so holding, we agree with the well‑reasoned decision of Judge Aldisert for the Third Circuit in Haines v. Liggett Group, Inc., 975 F.2d 81, 96‑97 (3d Cir. 1992). That court wrote: ‘Deciding whether the crime‑fraud exception applies is another matter [from deciding whether to conduct in camera review]. If the party seeking to apply the exception has made its initial showing, then a more formal procedure is required than that entitling plaintiff to in camera review. The importance of the privilege, ... as well as fundamental concepts of due process require that the party defending the privilege be given the opportunity to be heard, by evidence and argument, at the hearing seeking an exception to the privilege.’”

“We are not convinced that in all cases it is necessary for the district court to conduct a live hearing with oral argument; in appropriate cases, the court may decide the matter on the papers. But we are convinced, ... that, in a civil case, the party resisting an order to disclose materials allegedly protected by the attorney‑client privilege must be given the opportunity to present evidence and argument in support of its claim of privilege.”

The second key point addressed by the Appellate Court deals with burden of persuasion issues. “The Court in Zolin adhered to the cryptic statement made more than fifty years earlier in Clark that the burden of proof on the party seeking to vitiate a privilege was to make ‘a showing of a prima facie case sufficient to satisfy the judge that the light should be let in.’ Clark, supra, at 14.”

“We have never squarely addressed the question whether our ‘reasonable cause to believe’ standard, applicable in grand jury cases, is also applicable in civil cases. In [cite], a criminal appeal rather than a grand jury case, we wrote without elaboration: ‘All the government needed to show was evidence that, if believed by the jury, would establish the elements of an ongoing violation.’”

“For several reasons, we conclude that, in a civil case, the burden of proof that must be carried by a party seeking outright disclosure of attorney‑client communications under the crime‑fraud exception should be preponderance of the evidence. First, requiring a moving party to establish the existence of the crime‑fraud exception by a preponderance of the evidence is consonant with the importance of the attorney‑client privilege.”

“Second, the phrase ‘prima facie case,’ used by the Court in Clark and then fifty years later in Zolin, is not inconsistent with a preponderance of the evidence standard. ... As it relates to the crime‑fraud exception, ‘[t]he prima facie standard has always been poorly defined, inconsistently interpreted and generally misunderstood.’ Paul R. Rice, Attorney‑Client Privilege in the United States Section 8.6, at 44 (2d ed. 1999).”

“Zolin is therefore not directly on point, but we believe that it signals that preliminary questions concerning the existence or non‑existence of the attorney‑client privilege—including whether the crime‑fraud exception ‘terminate[s] the privilege,’—must be established under Rule 104(a). And we know from Bourjaily v. United States, 483 U.S. 171 (1987), that preliminary questions of fact under Rule 104(a) must be established by a preponderance of the evidence.”



“Finally, the problem of limited access to proof by the party seeking to vitiate the attorney‑client privilege is mitigated by the possibility of in camera review of the communications by the district court under the far less demanding standard of Zolin. We do not regard in camera review as a panacea, for a ‘blanket rule allowing in camera review ... would place the policy of protecting open and legitimate disclosure between attorneys and clients at undue risk.’”

“But judicious use of in camera review, combined with a preponderance burden for terminating privilege, strikes a better balance between the importance of the attorney‑client privilege and deterrence of its abuse than a low threshold for outright disclosure. Looking at the evidence presented in this case under the preponderance standard, we hold that even if all of the evidence proffered by [Plaintiffs] is believed, there is an insufficient basis to hold that the attorney‑client privilege may be vitiated under the crime‑fraud exception.”

“... [Plaintiffs] rely on two theories of fraud on the court. The first is that the entire loan was a sham intended for use in future legal proceedings as a means of disguising [Defendant’s] purchase of control of Napster. [Plaintiffs’] second theory is that [Defendant] undertook a scheme to defraud the courts by hiding a side agreement that allowed Napster to use a portion of the loan proceeds to pay its litigation expenses.”

“Even if we credit the Barry e‑mail, the Timm memorandum, and the Barry deposition testimony relied on by the district court, and even if we conclude that [Defendant] agreed with Napster that the term ‘overhead costs’ in the loan documents would include litigation expenses, we would not conclude that this evidence establishes an intentional, material misrepresentation directly ‘aimed at the court.’”

“Taken either alone or along with [Defendant’s] evidence, [Plaintiffs’] evidence does not establish that the loan terms constituted a fraud. Rather, the evidence shows routine wrangling over contract terms and a lawyerly attempt to make inconspicuous the fact that some of the money could be used for litigation expenses. Second, even if we were to conclude that the written terms of the loan misrepresented the parties’ agreement to allow some of the funds to be used for litigation expenses, [Plaintiffs’] evidence nowhere suggests that [Defendant] selected these terms with the intent to defraud the courts.”

“Third, even assuming, arguendo, that [Defendant’s] failure to spell out in the loan documents that ‘overhead costs’ included litigation expenses was an intentional misrepresentation, we do not see how it could have deceived a court into concluding that Bertelsmann provided no financial support to, or had no financial stake in, the existing Napster company.”

“For the foregoing reasons, in a civil case in which outright disclosure of attorney‑client communications is sought under the crime‑fraud exception, we hold that (1) both parties have a right to present evidence to the district court, and (2) the party seeking disclosure must prove by a preponderance of the evidence that the exception applies. We further hold that on the facts of this case the crime‑fraud exception has not been established.” [Slip op. 7‑15].

Citation: In re: Napster, Inc. Copyright Litigation, 479 F.3d 1078 (9th Cir. 2007).



**** Terik Hashmi is a business consultant serving businesses in the marketing realm. Among his clients are a medical service provider and an Online Reputation Management company. - Attorney Website at: https://terikhashmiattorney.com/ - Attorney Profile at: https://solomonlawguild.com/terik-hashmi%2C-esq# - Attorney News at https://attorneygazette.com/terik-hashmi%2C-consultant#eec97f53-49a0-4c94-869a-4847514cb694

Terik Hashmi, Attorney at Law, Legal Commentary

Seminar on Online Reputation Management (ORM) for Lawyers

Seminar on Online Reputation Management (ORM) for Lawyers in Washington, DC a success Online Reputation Management has become a cruci...