Oh what fun, lawyers (and their clients) have new regs to comply with and new exposure if they don't. Civil damages, administrative penalties, and even criminal charges are possible under these new rules. But this emerging field also provides new marketing opportunities. You can advise (and bill), you can represent damaged parties, and you can defend parties charged with failure to comply. And, if you practice in any related field, you can attract new business by speaking and writing about these new regulations. You can also earn profits beyond your legal fees by offering non-legal identity theft protection to your clients and their employees. I work with many attorneys who do this and the income is not only substantial, it is residual. If you're interested in learning more, send me a personal message. dw
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By Susan D. Oja and Alex De Grand
April 1, 2009 — Lawyers who bill their clients after services have been rendered are expected to implement a written program guarding against the theft of their employees' and clients' personal information under a new federal law.
The Federal Trade Commission will begin enforcement of the "red flags rule" on May 1. The rule is part of the Fair and Accurate Credit Transactions Act of 2003 (FACTA), a congressional response to spikes in reported identity theft. Identity thieves assume a person's entire identity or synthesize one from parts of various victims. Because more than half of identity thefts occur in the workplace, businesses are required to implement safeguards.
Those subject to the rule are "creditors" and financial institutions who maintain consumer-type accounts or other accounts at reasonable risk of identity theft. The FTC noted that identity thieves look for opportunities to obtain products or services that do not require payment up-front.
As interpreted by the FTC, "creditors" has a broad definition, encompassing professionals such as lawyers and doctors who defer payment of a client's bill. The American Medical Association protested that other federal laws and professional ethical duties to maintain patient confidentiality precluded the new rule. But the FTC held in a letter that the statute borrows the sweeping definition of "creditor" from the Equal Credit Opportunity Act (ECOA). Agency interpretation of the ECOA specifically includes doctors and lawyers within the meaning of "creditor."
What is expected
Under the new rule, lawyers must implement a written policy specifying how they will watch for the warning signs — the "red flags" — that indicate an identity theft may be occurring and how they will respond to prevent or mitigate the crime if uncovered.
Policies are supposed to be tailored to the amount of risk. The FTC acknowledges there is no bright-line rule to distinguish between high and low-risk. But the rule suggests a lawyer consider such factors as how easily an account is opened or accessed and previous experience with identity theft.
If a lawyer finds there is little risk, an appropriate program might comprise no more than checking photo id at the time services are sought and a policy against collecting from an identity theft victim or reporting it on the victim's credit report.
In its letter to the AMA, the FTC stated that it does not foresee the new rule imposing a great burden. "For example, a small medical practice with a well-known, limited patient base might have a lower risk of identity theft, and thus might adopt a more limited Program than a clinic in a large metropolitan setting that sees a high volume of patients," the letter read.
What to watch for
The Appendix of the "red flags rule" provides examples of incidents putting a creditor lawyer on notice of potential identity theft. In addition to fraud alerts from consumer credit agencies or the client's complaint, this list includes suspicious documents, perhaps altered or forged. A creditor lawyer may receive fishy personal information such as an unexpected change of address. Creditor lawyers are also directed to look for unusual use of an account.
A creditor lawyer's policy should address the detection of "red flags" at the time an account is opened by obtaining identifying information about the new client and verifying it, the rule instructs.
What to do
Responses to "red flags" should be in proportion to the risk posed and a creditor lawyer is advised to consider any "aggravating factors" such as a data security breach that may exacerbate the threat. The rule Appendix suggests appropriate responses could be alerting law enforcement, monitoring the account for evidence of identity theft, changing passwords or other security devices controlling account access, reopening an account with a new account number, or closing an account. Under certain circumstances, the rule states that a creditor lawyer may determine no response is necessary.
These written policies should be updated periodically to account for changes in risks to clients' information or innovations in detection of identity theft. A subsequent merger, acquisition, joint venture, or service provider arrangement may also prompt the need for an updated written policy.
The rule also requires appointing a senior management person to implement the program; appropriately educating employees; and overseeing any service provider arrangements. Liability follows a creditor lawyer's data, so due diligence is necessary to confirm vendor compliance before outsourcing payroll or hiring an office cleaning company.
More information from the FTC: The Red Flags Rules: Are you complying with new requirements for fighting identity theft?
Susan D. Oja, a solo practitioner in Middleton, is a certified identity theft risk management specialist through the Institute of Fraud Risk Management. Alex De Grand is a legal writer for the State Bar of Wisconsin.
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Filed under Career satisfaction, Inspiration, Just for fun by David Ward
In "The Slight Edge," Jeff Olson talks about the power of doing "the little things" over and over again, consistently, over time, until the compounded effect of those small efforts produces dramatic change. Brian Tracy, in "Create Your Own Future: How to Master the 12 Critical Factors of Unlimited Success," calls this same phenomenon, "the principle of accelerating acceleration."
Tracy, who sees the principle as a corollary of "law of attraction, says, [page 48], "Whatever you are moving toward [i.e., a goal] begins moving toward you as well." His characterization of how the principle operates should be given to every attorney who is about to start their own practice:
"When you first set a new, big goal and begin moving toward it, your progress will often be quite slow. You may be frustrated and think of giving up. The bigger your goal, the further away it will seem. You may have to work on it for a long time before you see any progress at all. But this is all part of the process of goal attainment."
"The 20/80 rule helps to explain the principle. . . . For the first 80 percent of the time that you are working toward your goal, you will only cover about 20 percent of the distance. However, if you persist and refuse to give up, you will accomplish the final 80 percent of your goal in the last 20 percent of the time that you spend working on it.
"Many people work for weeks, months, and even years toward a big goal and see little progress. They often lose heart and give up. But what they didn't realize is that they had laid all of the groundwork necessary and were almost at the take-off point. They were just about to start accelerating toward their goal, and their goal was about to start moving at a great speed toward them.
"This principle of accelerating acceleration seems to apply to almost every big goal that you set for yourself. You must therefore decide in advance that you will never give up."
So, as you contemplate how you might create your own future in the new year, start with your long-term, visionary goals. Decide now that they are worth the effort you are about to make. Get used to the idea that you probably won't see most of the results you seek for a long time. And then, and only then, when you tell yourself (and anyone else who will listen) that you won't give up until you get what you want, you might actually believe it.
Filed under Career satisfaction, Goal Setting by David Ward
This clip, from the movie, "Facing The Giants," is a poignant reminder that we can do more than we think we can. It also shows you why you should never give up.
If you need a bit of inspiration, or a kick in the seat, watch this clip and ask yourself, "What could I do if I didn't know I couldn't?"
And go for it.
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Filed under Goal Setting, Mentors & Coaches, Personal development by David Ward
How's business? The ABA Journal wants to know. They are surveying lawyers on the job market and the state of the economy. They've asked me to mention this on my blog, so here it is:
http://www.surveymonkey.com/s.aspx?sm=9Dhw2g7bX_2bxfq4mW8eB1Cg_3d_3d
Surveys are interesting, but guess what? The job market and the state of the economy have no bearing on your life. Unless you believe it will.
If you believe the economy will materially affect your practice or job, it will. If you believe it won't, it won't.
Does that sound naive? Some kind of new age hooey? Well, if you believe that, then for you, that's exactly what it is. But I have different beliefs. I believe we create our reality. I believe we can choose to be successful in the face of adversity or we can choose to capitulate, wring our hands, and suffer along with everyone else.
It's our choice.
You can choose personal responsibility. You can choose to be optimistic. You can choose to see opportunity when others see Armageddon. In the Depression of the 1930's, unemployment was twenty-five percent and millions suffered. But many made fortunes. I guess they understood that periods of great change create opportunities for the status quo to change. Of course that's also why many previously wealthy people jumped out of windows.
Business philosopher, Jim Rohn, said, “It is the set of the sails, not the direction of the wind that determines which way we will go.” How are you choosing to set your sails?
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Update: In case you're interested, here's a link to the survey results: http://www.abajournal.com/magazine/14307_lawyers_predict_the_future
Filed under Career satisfaction, Dealing with stress, Personal development by David Ward
Where would our world be if these people gave up? Think about these people the next time you're thinking about quitting.
As a young man, Abraham Lincoln went to war a captain and returned a private. Afterward, he was a failure as a businessman. As a lawyer in Springfield, he was too impractical and temperamental to be a success. He turned to politics and was defeated in his first try for the legislature, again defeated in his first attempt to be nominated for congress, defeated in his application to be commissioner of the General Land Office, defeated in the senatorial election of 1854, defeated in his efforts for the vice-presidency in 1856, and defeated in the senatorial election of 1858. He later became the 16th President of the United States of America.
Winston Churchill failed sixth grade. He was subsequently defeated in every election for public office until he became Prime Minister at the age of 62. He later wrote, "Never give in, never give in, never, never, never, never - in nothing, great or small, large or petty - never give in except to convictions of honor and good sense. Never, Never, Never, Never give up."
Sigmund Freud was booed from the podium when he first presented his ideas to the scientific community of Europe. He returned to his office and kept on writing.
Robert Sternberg received a C in his first college introductory-psychology class. His teacher commented that "there was a famous Sternberg in psychology and it was obvious there would not be another." Three years later Sternberg graduated with honors from Stanford University with exceptional distinction in psychology, summa cum laude, and Phi Beta Kappa. In 2002, he became President of the American Psychological Association.
Charles Darwin gave up a medical career and was told by his father, "You care for nothing but shooting, dogs and rat catching." In his autobiography, Darwin wrote, "I was considered by all my masters and my father, a very ordinary boy, rathe below the common standard of intellect." Clearly, he evolved.
Thomas Edison's teachers said he was "too stupid to learn anything." He was fired from his first two jobs for being "non-productive." As an inventor, Edison made 1,000 unsuccessful attempts at inventing the light bulb. When a reporter asked, "How did it feel to fail 1,000 times?" Edison replied, "I didn't fail 1,000 times. The light bulb was an invention with 1,000 steps."
Albert Einstein did not speak until he was 4-years-old and did not read until he was 7. His parents thought he was "sub-normal," and one of his teachers described him as "mentally slow, unsociable, and adrift forever in foolish dreams." He was expelled from school and was refused admittance to the Zurich Polytechnic School. He did eventually learn to speak and read. Even to do a little math.
Louis Pasteur was only a mediocre pupil in undergraduate studies and ranked 15th out of 22 students in chemistry.
Henry Ford failed and went broke five times before he succeeded.
R. H. Macy failed seven times before his store in New York City caught on.
F. W. Woolworth was not allowed to wait on customers when he worked in a dry goods store because, his boss said, "he didn't have enough sense."
When Bell Telephone was struggling to get started, its owners offered all their rights to Western Union for $100,000. The offer was disdainfully rejected with the pronouncement, "What use could this company make of an electrical toy." How many of you have a telephone today?
Rocket scientist Robert Goddard found his ideas bitterly rejected by his scientific peers on the grounds that rocket propulsion would not work in the rarefied atmosphere of outer space.
An expert said of Vince Lombardi: "He possesses minimal football knowledge and lacks motivation." Lombardi would later write, "It's not whether you get knocked down; it's whether you get back up."
Babe Ruth is famous for his past home run record, but for decades he also held the record for strikeouts. He hit 714 home runs and struck out 1,330 times in his career (about which he said, "Every strike brings me closer to the next home run.").
Hank Aaron went 0 for 5 his first time at bat with the Milwaukee Braves.
Stan Smith was rejected as a ball boy for a Davis Cup tennis match because he was "too awkward and clumsy." He went on to clumsily win Wimbledon and the US Open…and eight Davis Cups.
Tom Landry, Chuck Noll, Bill Walsh, and Jimmy Johnson accounted for 11 of the 19 Super Bowl victories from 1974 to 1993. They also share the distinction of having the worst records of first-season head coaches in NFL history - they didn't win a single game.
Johnny Unitas's first pass in the NFL was intercepted and returned for a touchdown. Joe Montana's first pass was also intercepted. And while we're on quarterbacks, during his first season Troy Aikman threw twice as many interceptions (18) as touchdowns (9) . . . oh, and he didn't win a single game. You think there's a lesson here?
After Carl Lewis won the gold medal for the long jump in the 1996 Olympic games, he was asked to what he attributed his longevity, having competed for almost 20 years. He said, "Remembering that you have both wins and losses along the way. I don't take either one too seriously."
Walt Disney was fired by a newspaper editor because "he lacked imagination and had no good ideas." He went bankrupt several times before he built Disneyland. In fact, the proposed park was rejected by the city of Anaheim on the grounds that it would only attract riffraff.
Charles Schultz had every cartoon he submitted rejected by his high school yearbook staff. Oh, and Walt Disney wouldn't hire him.
After Fred Astaire's first screen test, the memo from the testing director of MGM, dated 1933, read, "Can't act. Can't sing. Slightly bald. Can dance a little." He kept that memo over the fire place in his Beverly Hills home. Astaire once observed that "when you're experimenting, you have to try so many things before you choose what you want, that you may go days getting nothing but exhaustion." And here is the reward for perseverance: "The higher up you go, the more mistakes you are allowed. Right at the top, if you make enough of them, it's considered to be your style."
After his first audition, Sidney Poitier was told by the casting director, "Why don't you stop wasting people's time and go out and become a dishwasher or something?" It was at that moment, recalls Poitier, that he decided to devote his life to acting.
When Lucille Ball began studying to be actress in 1927, she was told by the head instructor of the John Murray Anderson Drama School, "Try any other profession."
The first time Jerry Seinfeld walked on-stage at a comedy club as a professional comic, he looked out at the audience, froze, and forgot the English language. He stumbled through "a minute-and a half" of material and was jeered offstage. He returned the following night and closed his set to wild applause.
After Harrison Ford's first performance as a hotel bellhop in the film Dead Heat on a Merry-Go-Round, the studio vice-president called him in to his office. "Sit down kid," the studio head said, "I want to tell you a story. The first time Tony Curtis was ever in a movie he delivered a bag of groceries. We took one look at him and knew he was a movie star." Ford replied, "I thought you were supposed to think that he was a grocery delivery boy." The vice president dismissed Ford with "You ain't got it kid, you ain't got it… now get out of here."
Michael Caine's headmaster told him, "You will be a laborer all your life."
Charlie Chaplin was initially rejected by Hollywood studio chiefs because his pantomime was considered "nonsense."
Decca Records turned down a recording contract with The Beatles with the evaluation, "We don't like their sound. Groups of guitars are on their way out." After Decca rejected the Beatles, Columbia records followed suit.
In 1954, Jimmy Denny, manager of the Grand Ole Opry, fired Elvis Presley after one performance. He told Presley, "You ain't goin' nowhere, son. You ought to go back to drivin' a truck."
Beethoven handled the violin awkwardly and preferred playing his own compositions instead of improving his technique. His teacher called him "hopeless as a composer." And, of course, you know that he wrote five of his greatest symphonies while completely deaf.
Van Gogh sold only one painting during his life. And this, to the sister of one of his friends, for 400 francs (approximately $50). This didn't stop him from completing over 800 paintings.
Leo Tolstoy flunked out of college. He was described as both "unable and unwilling to learn." No doubt a slow developer.
Louisa May Alcott, author of Little Women, was encouraged to find work as a servant by her family.
Emily Dickinson had only seven poems published in her lifetime.
18 publishers turned down Richard Bach's story about a "soaring eagle." Macmillan finally published Jonathan Livingston Seagull in 1970. By 1975 it had sold more than 7 million copies in the U.S. alone.
21 publishers rejected Richard Hooker's humorous war novel, M*A*S*H. He had worked on it for seven years.
27 publishers rejected Dr. Seuss's first book, "To Think That I Saw It on Mulberry Street."
Jack London received six hundred rejection slips before he sold his first story.
Let's end with Woody Allen: "I don't want to achieve immortality through my work. I want to achieve it through not dying. Eighty percent of success is showing up."
The message? Don't ever give up. Don't let anyone stop you from achieving success. Keep going, don't lose faith, and don't ever quit.
Filed under Career satisfaction, Personal development by David Ward
