Privatization, changing demographics, economy offer opportunities for law firms
What’s hot these days in the legal profession? Well, for starters, jokes Stuart Schroeder of the Schroeder Group, large downtown law firms are getting a clue when it comes to Waukesha County. Schroeder hung out his own shingle three years ago in the county after working 13 years at von Briesen, Purtell & Roper (one of those larger, downtown Milwaukee law firms) and two years at another Waukesha firm.
"If you really want to talk about what’s hot – with the economy having the trouble that it’s had and the Enrons of the world – it’s closely held companies, which is our bread and butter," Schroeder says. "They have really continued to do well throughout this (down economy). And what’s really hot is Waukesha County because of its concentration of closely held businesses."
While Waukesha County does remain a hot area for law firms to locate offices, the real news may be the issues that those firms and their clients could face in the coming years.
Stephen Hayes, a litigator with the Schroeder Group specializing in family law, sees continued privatization of social services, especially in Milwaukee County, leading to an industry surrounding those services.
"One of the things that’s happened in Milwaukee County is that they have gotten rid of the Milwaukee County Social Service unit handling everything, and they’ve contracted out foster care and adoption agencies to five or six different entities, so there are a whole series of businesses that have been created, in effect, to provide services to replace the county services," Hayes said. "So you are seeing more privatization, at least in the children’s court area, and I think you’re going to be seeing more of that if (Gov. Scott) McCallum has his way regarding providing shared revenues to municipalities."
Hayes noted that a boom in privatized social services is mirrored by the increase in judges handling children’s court. When he began practicing law some 30 years ago, there was only one, part-time judge; now there are seven judges and three court commissioners assigned to children’s court. Milwaukee County also leads the state in the number of adoption agencies.
"That doesn’t necessarily mean there is a growth in the number of adoptions," Hayes said. "But from a small-business standpoint, these are little enterprises that are forming all the time."
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While some traditional services provided by attorneys will probably never go away (estate and tax planning, contracts, etc.), there is one area that may see a reduction: business litigation.
Has the litigious nature of US citizens disappeared? Of course not. In fact, lawsuits have grown at an exponential rate, especially lawsuits involving businesses, which have increased by about 60%, says Thomas Halloran, a litigator with the Schroeder Group.
"The thing that is most difficult for them (business clients) is paying bills for litigation services and yet they find themselves embroiled in these disputes," Halloran says. "And, traditionally, the way to handle that is to file a lawsuit and that’s what happens. When the economy was booming, even though they didn’t like seeing those bills, they paid them. But as the economy has mellowed out, business owners are less inclined to get involved in those suits, but they are looking for a less expensive and faster way to resolve those disputes. And that’s where mediation comes in."
With a program called Fast Track Business Resolutions created by the state bar, business disputes are submitted and resolved within a certain amount of days, with a maximum of probably 60 days, Halloran said. The state bar is currently working to train attorneys to qualify them as mediators to staff the Fast Track program.
Tangled Web
Another hot area, driven by the Internet, is intellectual property rights, according to Margaret Serrano. Serrano’s law firm, PlanBrand, specializes in US trademark law and represents clients seeking to protect their marks in the US and in foreign jurisdictions.
Companies are discovering – by accident or other means – that former employees, vendors, competitors or completely unrelated entities are using their trademarks or service marks for their own Web sites. By using keywords in a Web site’s metatags – behind the scenes keywords used by the Web site’s designer to flag the site for search engines – these third-party Web sites could be obtaining implied endorsements by using a larger, well-known company’s name in the sites.
Serrano – who used to work for Anheuser Busch as part of its intellectual property staff – said that if she listed the brewing giant on her Web site or in her metatags, it could give the impression to people searching the Web that Anheuser Busch endorsed her law firm.
"I always advise people that if they’re going to list representative clients, get their permission first," Serrano said. "The last thing you want is someone saying, ‘What are you doing? I’m not endorsing or supporting you.’"
The Internet Corporation for Assigned Names and Numbers [ICANN], which regulates domain names and other Internet issues, is studying the use of trademarks and metatags by companies other than the trademark holders. It’s likely ICANN will deal with the trademark issue similarly to the way it has dealt with the cybersquatting of domain names.
"People are having great success getting their own names back," said Serrano. "(They’re) not having such great success if there are other meanings for what they want to get back. [For example, the musician Sting could not get www.sting.com back from a cybersquatter because the word ‘sting’ can mean multiple things, whereas actress Julia Roberts was able to get www.juliaroberts.com back from her cybersquatter.]
"If you can show that you have a registered trademark that was registered before the domain name registrant registered the domain name, and the domain name does not have a legitimate business purpose in registering it or using it or plans to use it, then the trademark owner can get that URL, but it has to be identical," Serrano said, noting that some individuals or companies register misspellings of their Web sites to make sure people who mistype or misspell still get directed to their sites.
Serrano also notes that intellectual property rights have been popping up all over the news lately, including the biggest bankruptcy case in US history: Enron. It’s no secret now that many of the off-balance sheet partnerships that Enron used to shelter debt were named after Star Wars characters like JEDI LP and Chewco Investments LP. Lucasfilm, which owns the trademarks on all things Star Wars, didn’t appreciate the implied association with what has become one of the biggest business scandals of all time.
"Until it surfaced in the press, Lucasfilm was unaware of any possible use of our protected trademarks by Enron, and any actual use by Enron of such trademarks was without our permission," Lucasfilm spokeswoman Jeanne Cole said in a press release.
"This is a trademark that has taken a huge hit because of that, and everyone’s distancing themselves from it," Serrano said. "… Unlike other things that are regulated very heavily by the government, like the Food and Drug Administration, the Environmental Protection Agency, there are no copyright and trademark police except for the owners of the trademarks and the copyrights. There is no government entity that’s going to come knocking on your door saying, ‘You’ve done wrong.’ It’s absolutely up to the owner to enforce the rights."
March 1, 2002 Small Business Times, Milwaukee
