Category: Marc’s Blog

Me and my shadow (the laptop)

With a hat tip to Harry Nilsson, I should probably name my laptop “Shadow”. It wasn’t always like that. Here’s the story.

I was the first in-house lawyer at Prudential-Bache to have a laptop. I used it for account analysis and word processing. The first one was big and heavy. I carried a spare battery the size of a sleeve of Ritz crackers. And it was stolen. It turns out the thief was a secretary in the Law Department.

The replacement was an IBM Notepad, the grandfather of the Thinkpad. It did not have a pointing device. I had a Microsoft trackball that clamped onto the side of the keyboard area and plugged into the mouse port (remember those?). It had longer battery life and was easier to carry. No spare battery with this one. I left Prudential for Florida.

I had a couple laptops at the first law firm. I was the only one (and an associate to boot!) with a laptop and made some of the partners jealous. They didn’t have a business need, just an ego hole to fill.

When Debra and I formed the law firm, we both had laptops and our sole employee had a desktop. This is where things get interesting. We had a case that carried over from the prior firm. It was set for hearing in Nashville. What happened to our client was criminal and, eventually, the government agreed. But not by the time we tried the case.

Trying cases in Florida, but out of town, involved a box of office supplies. Paper, pens, hole punch, telephone cord to plug in to the modem port of the hotel phone, and other supplies that you would typically keep in your desk. But a case you fly to requires slimming things down. The firm had been up and running only a few months in 1999 when the case was tried. I flew to Nashville and met up with my co-counsel from the prior firm, Jason Haselkorn.

As part of my night-before routine, I was going to sketch out my opening and witness exams. I looked in my briefcase to pull out my legal pad, where I would do the sketching. There was no legal pad. Panic set in. It was late in the evening on a Sunday night (I think) in Nashville. Where was I going to get a legal pad? As I looked around my room, I saw my laptop sitting on the bed. An idea hit me.

Why not use the word processor in the laptop as my legal pad? I opened up the computer and set up a table in WordPerfect (yes, WordPerfect). I realized that I worked faster and more relaxed when I had ten fingers typing instead of two holding a writing instrument. I think I explained my predicament to the arbitrators and essentially asked permission to use the laptop. Looking at the scenario from today’s perspective, this seems comical.

I took my notes. They were much easier to read and more thorough than any notes I had taken before by hand. They made closing argument easier to organize. Thus, the laptop, which I did not name “Shadow”, became my constant companion at any proceeding where I wanted to take notes. I converted Debra to this philosophy as well. We might have a pad laying around at a hearing, but almost everything was in our computers.

Once we started using laptops in this manner, all kinds of uses popped up. We used Instant Messenger to send notes to one another (provided we had internet access of some sort). Sometimes we used IM to communicate from the hearing room to the office. I then started using PowerPoint (after the switch to MS Office). I did background research on surprise witnesses. I analyzed the opposing expert report, sometimes on the fly.

Laptops were not commonplace in hearings in the stone ages. Early on, we had to get a court order to take our laptops into the Federal Courthouse in Fort Pierce. We weren’t even allowed to sit in the lobby with them while waiting for the order. I had an arbitrator ask opposing counsel if it was OK if I used a laptop. I didn’t quite understand the issue. Opposing counsel consented.

Now, I think it is unusual for a laptop to not be present for either side. Maybe not by lead counsel, but certainly anyone supporting lead counsel. I’ve been through several laptops. Surprising even myself, I am currently using a MacBook Air, which I like because it doesn’t have a cooling fan. It has been quite reliable and, since everything is in the cloud, the changeover has been virtually seamless. The MacBook will be the subject of its own blog post in the future.

At this point, 25 years later, I can’t imagine going into a hearing without a laptop in front of me. But looking back at the first time in Nashville, I realize what a fortunate circumstance that turned out to be.

The weather and the small-firm practitioner

I really hadn’t planned on posting again this week, but #HurricaneMilton forced me to do it. Not surprisingly, age has given me the ability to provide a historical perspective. Here’s why.

For the first six of the 31 years I practiced in Florida, I was with a mid-sized law firm. We were in a high-rise in downtown West Palm Beach. If a hurricane or tropical storm threatened, we lifted everything off the floor and put that stuff on our desks. We moved our computers away from the exterior windows. The IT staff protected the on-site servers. And we went home.

When Debra Jenks and I formed our firm in 1999, we had a server, then two servers, then back to one. If a storm came, we did essentially the same as our prior employer – picked stuff up off the floor, away from windows and hoped for the best. I usually brought the servers (heavy, by the way), home with me because I had hurricane shutters.

We did get hit by a storm and went into the office to be greeted by water on the floor. We lifted the furniture (also heavy) that we could and put it on concrete blocks. The file cabinets sat where they were. We went into the neighboring suite, which was the source of the water as that section of the roof had vacated the premises. It was a computer consultancy. We found their computers, still running, sitting in puddles on the carpet. Hmmm.

When I opened my solo practice, I maintained a physical server. In 2018, I decided to utilize my home office and rent out the office condo I owned. It was then that I realized that having a real server running in one’s home was not ideal. So, I moved everything to the cloud.

My files, timekeeping, accounting, and even my phone “system” are all in the cloud. Were I required to prepare for a hurricane, I would have very little to worry about in terms of the building blocks of my practice. I can replace a printer or a laptop. But my data is in the ether, protected with multi-layer security and backups. If I have an internet connection, I am at my office.

As I’m in Washington now, I watched with mixed emotions as my friends and family prepped for, and went through, the storm. But one thing I realized was that being cloud-based did make, and would have made, hurricane prep that much easier.

I am grateful that my friends and family came through the storm mostly intact and definitely safe. But from a business perspective, the cloud makes hurricane prep for the small firm relatively easy.

The big change – How a Florida lawyer ended up In Kirkland, Washington

I loved Florida weather. I could deal with the heat, and I loved that shorts and flip-flops had become my daily work attire. I started working from a home office in 2018, before it became trendy.

But life happens. Both of our now-adult offspring (I’m told that I can’t call them “kids” because it makes me sound old) ended up in the Seattle area permanently. And now there’s a granddaughter, with another on the way. My wife and I (and maybe our cats) decided that we would rather be permanently near family. They seem happy. Ask them in a year.

So, with very little planning, we bought a new place in Washington, listed our house for sale in Florida, got on a plane with the aforementioned cats, and flew out to Washington for the last time as permanent Florida residents. I obtained my Washington license last year, so that wasn’t an issue. But let’s just say, it’s an ongoing journey.

Instead of making fun of cold-calling brokers, who seem to have decided to leave me alone, I am going to write about other things, such as what it’s like to leave behind a 30 year-old network of friends and colleagues and start over again, where I know virtually nobody. So far, I’ve increased that network by 2 or 3.

I’m also going to write about a first-person experience I am having in the arbitration process. I bought a car three years ago and there was an arbitration clause in the purchase agreement. I have followed the contractual requirements for a pre-arbitration demand (which I knew would be a waste of time) and filed an arbitration. As an arbitrator, it’s interesting to be on the other side of the table. It’s interesting to see how the process works. I intend to share this experience.

As to how to contact me, nothing has changed. I still have my Florida number and intend to keep it. I will add a Washington number so that people don’t think I’m here temporarily. Email’s the same. Website is the same (which you know if you’re reading this post)

There were a few times in my life that we could call a new chapter. Marriage. First child. Moving to Florida. Forming a law firm. Going solo. Now I can add to that list – moving as far away as possible from where you were practicing.

First adjustment for now? the time zone difference. Even if I wake up at 6, clients in other time zones have started their day before my coffee has even started to brew. East coast judges set a hearing for 8:45 am, which is convenient for them. For me? Not so much. But I adjust.

Please hang out with me on this journey as I figure my way through a new experience.

An interesting cold call from someone claiming to be Bob Mullic from Murphy Financial Group

So the phone rang up “Unkown” on the Caller ID. I answered. It was a higher-pitched male voice who identified himself as “Bob Mullic.” He reminded me that we spoke before and I told him to call me back with some ideas. Since I am not senile, I knew he was lying. While we were talking, suddenly “Bob” lowered his voice an octave and had a different accent. I thought “well this is different.”

We continued the conversation and new Bob told me that Murphy Financial Group has 500 offices. Even more interesting. I tried to look him up on Brokercheck and couldn’t find him. I asked him why his phone number wasn’t properly displayed on my Caller ID. He said he always calls “private” and there’s nothing wrong with that. I told him that FINRA would beg to differ.

I tried to ask him his address and callback number but the line went dead.

So, as a public service, if you get a call from one of two men named “Bob Mullic”, ask them to call me so I can have their address and phone number. I’m sure a regulator would like to chat with them.

We lost another good person who happened to be a lawyer – Bill Nortman

I couldn’t bring myself to send another email blast with bad news. But I could not let Bill’s passing go by without noting it.

I didn’t know Bill until I came to Florida in 1993. I always liked dealing with him. He clearly knew a lot about the securities business and had the respect of his peers. I even hired his paralegal (who had a very long commute to the Fort Lauderdale office) and he wished us both well.

But that wasn’t the part that I liked most. We had occasion to meet Bill and his wife at several FSDA functions. First, it was clear he was a genuinely nice guy. We had similar taste in cars (except he seemed to be able to afford his). And he was clearly devoted to his family. We met his kids and I remember (I think) seeing pictures or hearing of at least one grandchild.

That, to me, was as important as his legal skills. Lots of people are good lawyers. It is the true testament to a person’s character when they don’t let their career ruin their family relationships. It was obvious, at least to me anyway, that Bill pulled it off.

But Bill, of course, had a professional family, too. Those with whom he worked closely and those with whom he had developed personal relationships. All of those people will miss Bill.

I don’t have much more to say. I hope I don’t have to write anything else like this in 2016.

Apparently, a cold caller might read my blog “-” Revised

A couple of years ago, “Jerry” or “Gerry” from a brokerage firm in New York called me.  You can read about it here.  I pointed out in the post that the caller ID had a bogus number and that the bogus number was a violation of FINRA rules.

So “Jerry” or “Gerry” just called me again.  He told me he was from the same firm as before.  This time the Caller ID said it was anonymous.  First he called me Mr. Dublin, then I corrected his pronunciation of my name.  Then I asked him for his last name.  He gave me a phony name.  I questioned him about his name and he told me that was the son of the firm’s founder.  I have come to believe that this was a lie as well.  I realized that this was the same guy, or someone who sounded a lot like the guy from two+ years ago.

Gerry (I’m using the G because I think that is how it might be spelled) told me that he called me a couple months ago and told me to follow Apple and that it went from some low price (I forgot the price) to 120 (that part I remembered he said).  At least he got something right.  Apple did hit 120 some time in December 2015.

I asked Gerry if he knew his Caller ID said “Anonymous”.  He sounded surprised.  He said he knew that rule 3230 requires the caller ID to be accurate.  Funny, that is what my post in November 2013 says.  Maybe I have a fan?

I then told Gerry that he was lying to me.  We didn’t speak at any time, let alone a few months ago, about Apple.  He then said I spoke with one of his associates.  I reminded him that he said that “we” spoke.  He said that’s not what he said.  Instead, he insisted that I must have something in my ears!  At that point I hung up.  But I was still curious.

So I looked up the firm’s broker roster in New York.  There is only one person who might be called “Gerry” and that is his middle name.  I won’t use his name in case that is not the person who called me.  But there is no one named Gerry or some derivative listed on the New York roster and that is the only office listed on their website.  Additionally, there are no significant owners listed on the Brokercheck with the last name he gave me.  So I am pretty sure that Gerry was not being truthful with me.

A cold-caller making things up?  I know that we are all shocked.

Gerry – please stop calling me.  You’re annoying and you don’t know who you’re dealing with when you call.

Postscript – After I posted this page, I sent a link to the Compliance Officer of the firm.  I was pretty mad.  I received a call today from the President of the firm.  He apologized.  He told me that “Gerry” was no longer with the firm and hadn’t been for several months.  He told me that “Gerry” was fired by the firm.  He told me that two years ago he personally placed my name on their do-not-call list.  I believe him.  I give him credit for calling me.  He assured me that they do not make outbound calls using an anonymous caller ID.  So I modified this post to remove any reference to the firm because I think that “Gerry” might not have been calling me from the firm.

But I do think he read my blog post.

That’s the view of one lawyer from Jupiter, Florida.  I’m Marc Dobin and you didn’t call me to tell me to buy Apple, whoever you are.

Credit Suisse's going-away present to the brokerage industry.

So I’ve been in the securities business for over 30 years now.  For as long as I can remember, disputes between brokers and their firms went to NASD, then FINRA, arbitration.  The U-4 says it.  The FINRA Manual says it.  But Credit Suisse has a different view and, in a bizarro ruling, the Second Circuit agreed.  If you want to read the opinion, here it is..

I’m going to try to explain what happened in simple terms.  The employees had an internal beef with Credit Suisse.  The firm has an internal dispute resolution program that is informal, then mediated, then formal.  The employees went through the first two steps not to their satisfaction so, not surprisingly, they took their marbles and client list and left for Merrill Lynch.  Both firms are members of the Protocol for Broker Recruiting.

Credit Suisse then filed an arbitration against the brokers with JAMS, a mediation and arbitration service, regarding their alleged improper solicitation after leaving the firm’s employ.  Eventually, the brokers and Merrill Lynch filed a FINRA arbitration alleging that Credit Suisse violated the Protocol.  Credit Suisse said “oh no, we have to go to JAMS” and went to court to stop the FINRA arbitration, at least with the brokers.

The brokers told the court that they agreed to arbitrate in FINRA under the U-4 and FINRA Constitution and Rules.  Credit Suisse argued, incredibly, that Rule 13200 only requires arbitration, not an arbitration at FINRA.  Huh?  Worse yet, that argument prevailed, both at the trial level and the Second Circuit.  This makes my head hurt.

Did I forget to mention, Credit Suisse is pulling out of the US retail business?  So this will be the firm’s legacy.

The result left me wondering about FINRA’s actions against Merrill Lynch for making retention loans from a non-FINRA entity.  In that situation, Merrill paid a $1,000,000 fine.  I’m trying to reconcile these two situations and it makes my head hurt – again.

I’m thinking, just like the manner in which FINRA keeps sticking its finger in the expungement dike, that FINRA will be making pronouncements about how arbitration means FINRA arbitration.  If not, then it will confirm some of the suspicions held about the agency’s bias.

That’s the sporadic view of one lawyer from Jupiter, Palm Beach County, Florida.  I’m Marc Dobin.

On Wall Street agrees with me.

So I haven’t written in a while.  I apologize to the three people who actually read my blog.  But this struck me.  On Wall Street magazine recently posted an article discussing the wisdom of firing clients.  I wholeheartedly agree.

I’ve tried so many cases and handled so many more.  Like a disintegrating marriage, there are frequently signs that a broker’s relationship with a client is deteriorating.  Phone calls don’t get returned.  The client doesn’t respond in the usual manner to seminar invitations.  The client becomes more demanding, including demands for significant commission discounts because of account performance.  These are all signs.

It is not unusual to hear from a broker, during the course of an arbitration proceeding, “I should have fired the client, but I did not want to make him/her angry.”  Well, by that time it’s too late.  And it doesn’t matter.  Once a client has decided that the broker is the enemy, no amount of being nice is going to repair the relationship.  As Queen Else sings in Frozen, let it go.  A broker will lose more money and time trying to retain an unhappy client rather than simply showing the client the door, politely of course.

That’s the view of one lawyer from sunny and unseasonably warm Jupiter, Florida.  I’m Marc Dobin.

I am ambivalent about Avvo and here is why.

As the son of a lawyer, I kind of knew about Martindale-Hubbell ratings.  As a new lawyer, I knew that I wanted that Av Martindale-Hubbell rating.  It meant that my peers thought highly of my work and ethics.  When I first received the rating, I told my dad and I was quite proud.  When I had a partner, the law firm had an Av rating.  Then the internet came along.

The internet wants to democratize everything.  Who cares what lawyers think about other lawyers?  Let’s let everyone rank everyone else.  Also, let’s let clients rate their lawyers the same way Yelpers rate a takeout Korean barbecue joint.  I wasn’t a fan of this, but Avvo forced me to participate.  Why? Because if I didn’t, my rating would languish somewhere around “meh”.

I soon figured out, though, that the Avvo numerical rating may use some of the consumer input, but without any input I could make my number rise.  I put in my educational background, significant cases, CLE articles and lectures, which all increased my rating.  My current Avvo rating is a 9.9 “superb”.  My wife, by the way, still thinks I’m “meh” but I don’t think that has to do with my lawyering.

Back to Avvo.  So I don’t put much stock in Avvo’s 9.9 assessment of me or walk around with a big LED sign over my head saying “superb” like the pig in Charlotte’s Web.  Instead, I just let it sit there.  But I have clients that found my Avvo page.  This is what causes the ambivalence.

When I finish a case, the client usually says “thank you” and we move on.  The closing papers are filed or signed.  We send out any trust account funds and, unless the client has another problem, we don’t hear from the client again.  Avvo has changed that.  Three clients have said some of the nicest things anyone (who isn’t my mother) has said about a lawyer, let alone about me.  The internet, unfiltered, facilitated compliments from clients that reminded me why I like being a lawyer.  The most recent comment was written by a client whom I last represented in 2009.  I haven’t heard from the client in years.  But the things the client wrote meant a lot.

I’m used to reading all the vile and mean stuff that commenters have written in response to articles in the local or national papers.  I’ve seen the stories about the online bullying done through Facebook and elsewhere.  But to have three people take the time to tell the world (or at least the world that looks on my Avvo listing) about their experience with me, that’s what causes the ambivalence.  Because I don’t think Avvo should call me “superb” just because I gave them lots of info for my listing.  But those three clients, they all gave me five stars.  If I was a barbecue joint, people would be lining up around the corner after seeing the ratings on Yelp.

My advice is don’t rely on numeric or star ratings.  They aren’t the guarantee of success or failure.  On the other hand, if you like the lawyer and he or she is competent and cares, that’s what should matter.  Then tell the world on Avvo.

That’s the view of one lawyer from Jupiter, Palm Beach County, Florida.  I’m Marc Dobin and I don’t feel “superb”.

Merrill Lynch fined for late U5 filing

The U-5, the Uniform Termination Notice, is an important part of the information flow in the securities industry.  When a Registered Representative leaves a firm, a U-5 must be filed.  The firm has 30 days to do so.  Most firms have procedures in place to timely file a U-5.

Merrill Lynch, I am sure, has such procedures.  But those procedures were apparently missed when it came to a Missouri broker named Greg Campbell.  The firm received two complaints alleging theft from customer accounts.  Firms do not tolerate theft from customer accounts.

But when Mr. Campbell left Merrill Lynch and joined LPL, it took the firm a year to notify FINRA of the complaints.  That led to Campbell’s termination at LPL.  But I am sure that LPL would not have hired him in the first place had they known about the complaints.  And that would have avoided $500,000 of theft, the amount reported by the Wall Street Journal that was stolen from LPL customers.  This is on top of the $1.7 million stolen from Merrill Lynch customers.

I have seen situations like this before.  I’m wondering if LPL will go after Merrill Lynch for its failure to timely report, arguing that had Merrill Lynch reported the two complaints, LPL would not have hired the thief and not paid out $500,000 in restitution.  I guess we’ll see.  But it will be in arbitration, so maybe we won’t see unless a decision is reported.

That’s the view of one lawyer from beautiful Jupiter, Palm Beach County, Florida.  I’m Marc Dobin and I’m looking at blue skies outside my window.