Kenneth Berlin and his team at Skadden, Arps, Slate, Meagher & Flom have been working on climate-related matters for years. He headed the Justice Department's Environmental and Natural Resources Division, chaired the Environmental Law Institute and has shepherded a mountain of environmental litigation for major corporations.

Skadden hadn't needed a climate change group before: It simply tapped environmental, energy regulatory, intellectual property and tax lawyers to help out when the need arose. Partners, however, at the nation's highest-grossing law firm have changed their minds: This week, they were scheduled to launch a 23-lawyer group specifically devoted to climate change issues.

"The whole area is changing," says Berlin, who will head the group. "The area is developing so quickly now that it now merits a practice area."

The firm is joining an ever-growing list of major firms that are creating a climate change brand. Akin Gump Strauss Hauer & Feld, for example, debuted its climate change practice in November. Vinson & Elkins announced its climate change practice last spring, and many others have organized groups in recent months. In fact, 26 Am Law 100 firms tout some form of a climate change practice. A handful of others hype clean technology groups.

"Climate is hot in a way that nothing else has been before," says Latham & Watkins partner Robert Wyman Jr., the firm's lead counsel for Clean Air Act matters. "We're talking about transforming the energy and transportation economy."

Unlike other fleeting law firm trends -- remember those Y2K practices? -- there appears to be real work to be done here. Heightened regulation of companies releasing carbon dioxide and other greenhouse gases has led to a host of new legal questions. Although Congress is still working out federal emissions limits, corporate clients are facing state and regional emissions caps as well as standards outside the United States set by the Kyoto Protocol. The work, mainly, falls into two categories: helping companies navigate emissions caps issues and litigating disputes arising from emissions limits or from problems caused by greenhouse gases.

That said, there's still a marketing ploy at work: "Climate change" groups, primarily, rely upon lawyers from existing practice areas, such as corporate, energy, tax and, of course, environmental. Labeling a multidisciplinary group as a "climate change practice" is shorthand for clients who are genuinely fearful about regulation and litigation. "I don't think there's a single Fortune 100 company who has not had a board-level conversation about their exposure to climate change regulation," says Todd Glass, chair of Heller Ehrman's energy practice and a partner in the climate change group.

Naturally, there's money to be made here, too.

Covington & Burling's Rubén Kraiem, who co-chairs the firm's carbon markets, climate change and clean technology practice, says the 17-lawyer area has generated $1.5 million annually since its inception in 2005.

Kraiem estimates that at least 250 of the hours Covington lawyers spent for clients Kohlberg Kravis Roberts & Co. and Texas Pacific Group on their $45 billion leveraged buyout of TXU Corp. in 2007 were billed as climate change work. (Partner Stuart Eizenstat is the Covington group's other co-chairman. During the Clinton administration, Eizenstat led the U.S. delegation that negotiated the Kyoto Protocol.)

During the TXU buyout, investors became concerned about opposition from environmental groups because of the Texas energy company's coal-powered generation of electricity. The buyers wanted the deal to include a number of policies addressing climate change issues. Covington, Kraiem says, helped structure those commitments, which included increasing TXU's investments in renewable energy and creating an advisory board with representatives from environmental groups.

Latham's Wyman says his firm's global climate change practice, which started in 2004, is generating serious revenue. He says one of his current climate projects alone has brought in more than $1 million in fees. He declined to disclose the name of that client.

Claudia O'Brien, a partner in Latham's Washington office and a member of the global climate change practice, says she can recall at least 30 recent deals at the firm that have involved climate change.

Wyman, a partner in the firm's Los Angeles office, organized the California Climate Coalition and now counts it as one of his major clients. The coalition's 18 members include Shell, Chevron, General Electric, Northrup Grumman and a number of startup clean-technology companies. The startups can potentially provide the carbon-emitting members with ways to reduce their emissions, and, in turn, those members can invest in and help expand the startup companies.

Wyman formed the coalition in anticipation of the 2006 enactment of the California Global Warming Solutions Act, which mandates that greenhouse gas emissions from major industries are reduced to 1990 levels by 2020.

American Honda Motor Co. Inc. belongs to the carbon-emitting side of Wyman's coalition. David Raney, senior manager of environmental and energy affairs for Honda, says he sought out Latham, and specifically Wyman, for the firm's expertise on carbon trading. "We're breaking new ground," Raney says. "This is fundamentally asking some new legal questions."

One of the key business drivers for firms is the Kyoto Protocol. Though the United States has never adopted it, Kyoto took effect in much of the rest of the world in 2005 -- and U.S. companies are bound by it when they operate in international markets.

The protocol requires developed countries to reduce greenhouse gas emissions to below-1990 levels and allows companies to invest in clean energy projects in other countries in exchange for credits to offset emissions. The European Union, for example, has set up a cap-and-trade system under which companies are assigned emissions limits. They can then trade for carbon credits if they exceed their caps. Pending legislation in the United States could set up the same type of scheme here. (U.S. companies also engage in voluntary carbon trading, often in response to shareholder concerns.)

And that's where the "carbon lawyers" come in. Alston & Bird partner Kipp Coddington, for instance, helps his greenhouse gas-emitting clients navigate the carbon market by advising them on emissions trading issues. He says 90 percent of the practice's clients are new to Alston and were, specifically, looking for climate change expertise.

Coddington proudly declares himself a carbon lawyer. In many ways his practice bears the markings of traditional corporate work. The Washington partner leads the climate change and carbon management group and says Alston has 10 to 15 lawyers working full time for the practice.

Firms are also anticipating eventual federal regulation in the United States. Clifford Chance created its environmental and climatic trading group back in 2003. Washington counsel William Thomas says his energy and manufacturing clients are increasingly aware that the Securities and Exchange Commission may soon require companies to comply with climate-related disclosures. The firm is helping companies "craft appropriate communications in their financial statements and in their voluntary sustainability reports," Thomas says.

The Senate Committee on Banking, Housing and Urban Affairs, led by Sen. Christopher Dodd, D-Conn., has held hearings on getting the SEC to require public companies to disclose the financial impact of climate regulation. In September, a number of states and investors petitioned the SEC to expand and further explain disclosure requirements related to climate change. So far, the SEC hasn't taken definitive action.

The US Supreme Court took up a question that has plagued trial courts across the country. If a person is sane enough to stand trial, does that mean he is mentally competent to represent himself?

After five years and three findings of mental incompetency, Ahmad Edwards was finally judged to be competent to stand trial on attempted murder charges, but he wanted to represent himself. The Indiana trial judge ruled that Edwards was too disturbed and incoherent to act as his own lawyer. The state supreme court said Edwards had been denied his constitutional right to represent himself and the state appealed to the U.S. Supreme Court, which heard arguments in the case Wednesday.

Lawyer Mark Stancil, representing Edwards, says the Constitution protects the defendant's rights at trial, not the states' rights.

Indiana Solicitor General Thomas Fisher, says the state has an interest in the public perception of a fair process.

European law firm, Field Fisher Waterhouse LLP, has announced the successful recovery of £550,000 in compensation for a labourer injured at work.

In December 2005, the labourer was instructed by his foreman to collect waste materials from a large open shed. On entering the shed, a large mechanical digger with a sharp bladed shovel drove into him. The shovel hit both legs causing a severe injury at work. As a result, he had a below knee amputation of his left leg. This has meant that while he can now walk using a prosthetic limb, he is unable to return to his former employment or any other manual labour.

Paul McNeil, partner in the Personal Injury Group at Field Fisher Waterhouse, was given legal instruction by the client at the end of 2005.

Although the labourer’s former employer quickly accepted that they were primarily responsible for the accident, they argued that he was also partially responsible for the negligence. They alleged that he had actually gone into the shed against instructions by the foreman.

Field Fisher Waterhouse succeeded in obtaining substantial interim payments to fund medical treatment and rehabilitation. The initial case to decide the issue of fault was fixed for trial in March 2007, however a few days before this date the employers accepted that they were fully liable for the accident.

In the meantime, there was a dispute between the employer and their insurer, which resulted in the insurer cancelling the policy. The meant that Field Fisher Waterhouse then had to bring proceedings against the employer directly.

Due to a significant difference in opinion between the employer and Field Fisher Waterhouse’s valuation of the injury compensation claim, another trial needed to be fixed for December 2007 to settle the matter. Eventually after extensive negotiation, the claim was settled out of court in the sum of £550,000 plus costs.

The labourer received his damages in full as the case was conducted on a no win, no fee basis.

Paul McNeil said: “I am happy that we were able to recover this compensation for our client, who was injured through no fault of his own whilst at work.”

A new type of legal service provider emerges through innovation.
When it comes to technology, let me confess, I am definitely not an expert. Nevertheless, I am fascinated by the two types of creativity involved with technology. The most obvious is the technical creativity required to invent and develop a new product or system. But the other, less-obvious type is the client-focused creativity that innovative lawyers demonstrate in developing new products and services as the result of existing technology.

One recent example of this is a product developed by Nova Legal and Advisory, which is located in Sydney, Australia, and consists of both a traditional law firm and a consulting firm. The law firm specializes in commercial legal services and complex corporate transactions, while the consulting firm specializes in corporate governance and risk management. The lawyers worked with the consulting firm’s technology staff to come up with a product called Nova Solutions. As Nova Legal and Advisory describes it, the product is “an integrated online management tool for the governance infrastructure needs of organizations.”

Lawyers and Technicians Collaborate
Basically, Nova Solutions is an online training and compliance program. The firm’s lawyers had developed an extensive understanding of client needs in human relations, compliance, governance and training. They then collaborated with the consulting group’s researchers, technical writers and technicians to convert basic systems into, as the firm summarizes it, “an Internet package tailored to each company, where users can click on a screen to see the company’s policies in relation to a range of regulatory and compliance issues.”

But this product goes even further. Users can click again “to complete a training course to bring them up-to-speed on the company’s requirements in these areas.”

This is at least the fourth such online training and compliance product developed by a law firm. Blake Dawson Waldron, one of Australia’s largest firms, offers Salt TM Enterprise, a fully managed, Internet-delivered service supported by the professional team at Blake Dawson Technology Pty Ltd.

Salt TM Enterprise is quite an extensive program. In Australia, it currently offers 14 courses covering key areas of the law, including corporate governance, environmental compliance and insider trading. There is also a module for information and communication technology companies to help them benefit from Australia’s Free Trade Agreements with the United States, Singapore and Thailand.

And recently Blake Dawson extended Salt TM Enterprise to New Zealand through an affiliation with Kensington Swan, a full-service commercial law firm. Among the 12 courses offered there, several are different from the courses offered in Australia, including “Consumer Guarantees,” “Money Laundering” and “Resource Management.”

There are Stateside examples, too.
“Down Under” law firms aren’t the only ones that offer online training and compliance programs. Holland & Hart offers the Holland & Hart Compliance Management System (HHCMS). Developed in collaboration with My Learning Advantage, Inc., an e-learning software provider, HHCMS is offered as a “fully hosted,” customizable and continually updated service. Its design utilizes a multimedia approach, with video segments at the beginning and end of each course.

A similar training program, but without the compliance component, has been developed by the multi-office law firm Howrey in the form of its Howrey Virtual University, which is a system designed for a group of internal clients—the firm’s associates. Located on the firm’s intranet, this program
allows associates to manage their
training individually, on their own
time schedules.

Applying Preventive Legal Medicine
The point here isn’t the technical creativity. The underlying technology already existed. What is noteworthy is the client-focused creativity employed by the lawyers in these firms. They took an existing system and, with the assistance of technology experts, developed it into a product that not only provides clients with information and knowledge 24-7, but also provides the ability to anticipate and resolve issues that otherwise could grow into major legal problems.

In other words, just like many doctors do with their patients, these firms don’t just “cure” their clients-—they try to keep them healthy by providing preventive legal medicine. And in the process, by applying creativity to technology, they have created a new type of legal service provider. To me, that is really fascinating.

Practice Areas

Hot
Intellectual Property. Not only patents but also copyrights, owing to Internet issues. Proposed legislation may provide copyright protection against knockoffs of high-fashion designs, too, because the devil does not always wear Prada. Also the PTO has adopted new rules.

Immigration. So hot that a few firms are separating it from labor and employment.
Labor and Employment. More complex than ever, not just owing to immigration, but also because of new EEOC rulings, continuing discrimination claims and possible new organization drives by unions.

Corporate Investigations. Fastest growing area of white-collar crime.
Complex Litigation. But see “Getting Hot—Mediation.”

Global Warming. California firms were the first to form this environmental subgroup that includes regulatory and insurance issues. Now Greenberg Traurig (which has offices and alliances around the world) has done so.

Domestic Relations/Family Law. Determination of parentage is now a hot issue in fertility law as the result of in vitro fertilization and embryo storage.

Pro Bono. Not only as a payback to the community, but also as a recruiting attraction and a professional development strategy to provide courtroom experience for associates.

Estate Planning and Administration. Particularly the latter, now that the baby boomers are starting to retire.

Elder Law. As part of the estates practice, mostly in smaller firms.

Animal Law. A niche that was heating up before the Michael Vick case and the Animal Fighting Prohibition Enforcement Act was signed last May. There are anticruelty laws in 43 states.


Getting Hot
Mediation. As well as other forms of alternative dispute resolution.

Libel. Suits against bloggers and message board postings are still increasing.

Foreclosures. Small firms overcome the low rates with staff-to-lawyer ratios as high as 10:1.

Art Theft and Fraud. A small but growing number of lawyers in the U.S. and Europe are focusing on the recovery of stolen art and historical pieces.

Bankruptcy. The cycle is swinging back. May be hot again by spring.

Insurance Coverage. Owing to global warming. Area was cool a year ago.

Post-arbitration Litigation. Some experts are seeing an increase.


Cooling Off
Structured Finance/Securitization. Largely owing to subprime mortgages. But a few firms, including Patterson Belknap, have started subprime counseling practices to help clients deal with problem loans.

Mergers and Acquisitions. Deals are being cancelled or at least deferred.

Cold
Medical Malpractice. Filings continue to decline owing to tort reform in many states, while the percentage of verdicts in favor of health-care professionals has increased in some parts of the country. As a result, insurance defense practices are shrinking and some firms have dissolved.

Workers’ Compensation. Here, too, the number of cases being filed continues to decline.
Geographic Market

Phoenix. Firms from the Upper Midwest and more recently the East continue to expand with offices here because it is the logical market in the booming Southwest. Ballard Spahr Andrews & Ingersoll is the latest.

China. Still hot despite a shortage of legal talent and regulations that limit the work foreign lawyers may do. McDermott Will & Emery may have found a way around these hurdles by the strategic alliance it entered into a year ago with Yuan Da Law Offices of Shanghai—reported to be the first formal arrangement between a Western and a mainland China firm.

United Arab Emirates. Dubai is white hot. Patton Boggs and Gibson, Dunn & Crutcher are opening offices there, following other firms that opened there in the past few years.
Spain. Has continued to be strong for U.S. firms.

Marketing and Business Development CRM. As we reported a year ago, firms continue to struggle with business development activity reporting.

Marketing Technology. Jeanne Hammerstrom, CMO at Benesch Friedlander, has hired a marketing technology specialist to drive the CRM and competitive and marketing intelligence systems, as well as to work with recruiting and IT on project and practice management for practice groups.

Television Advertising. While still frowned upon by most of the legal profession, it continues to be the medium of choice for personal injury firms and others in the consumer legal market. (Radio is second.) Now LexisNexis Martindale-Hubbell is partnering with Spot Runner, an Internet-based advertising agency, to create ads specifically for smaller M-H clients. Ads developed to date cover areas such as family law, drunken driving, personal injury and general practice. Commercials for criminal and immigration are being developed.

Print Advertising. Continues to be a medium of choice for large firms. Some have shifted their strategy from an institutional approach (i.e., the firm itself) to featuring practice areas. Cozen O’Connor and Winthrop & Weinstine were among the first. Now Benesch Friedlander has launched an interesting campaign, “My Benesch, My Team.”

Advertising and Solicitation. The distinction is specifically addressed within the rules in some states. However, as ABA counsel Will Hornsby has written, “The ABA Model Rules and the states that base their regulations on those rules do not set out the distinction clearly. The difference is important, however….” Therefore, marketers and lawyers must be certain of the rules in their states. This gets even more complicated for firms with offices in more than one state.

Martindale-Hubbell. A new surge of challenges from firms questioning the cost of listing in M-H.

Marketing Budgets. Continue to increase as a percentage of firm revenues at both large and midsize firms, with many now going beyond the historic 2 percent. In the U.K., marketing budgets have always been much larger, running as high as 10 percent in some “white circle” firms. In the U.S. and the U.K., the big accounting firms have been spending that much for years.

Marketing Department Staffs. Increasing in size along with the budgets.
Role of the Marketing Professional. Appears to be changing in several different directions. Some firms have recognized that their chief marketing officers’ role should be strategic. However, as their departments have grown, a high percentage of CMOs are having to spend more time on department administration and staff management. And some firms now expect their CMOs to produce new business—i.e., concentrate on sales and business development.

Marketing vs. Business Development. Many firms have not yet realized that these are separate but symbiotic functions. As we stated in last year’s report, corporations long ago recognized this and have combined marketing and sales under one senior executive so that the functions supplement and complement each other. This is another area where law firms should learn from their clients.