This program will provide you with a guide to sophisticated like-kind exchange planning in a market where prices have stabilized and are rising again. The program will discuss planning problems and drafting traps with forward and reverse exchanges, including with related parties. It will also cover techniques for minimizing the adverse effect of the receipt of “boot” in and the use of single-member LLCs and Family Limited Partnerships to increase the attractiveness of exchanges. Alternatives to like-kind exchanges, including mixing bowl transactions and leveraged acquisitions, will also be covered. This program will provide you with a framework for understanding advanced like-kind exchange planning formats, hidden planning and drafting traps, and effective alternatives when like-kind exchanges are not appropriate.

Day 1 – May 2, 2013:

• Framework of advanced like-kind exchanges techniques and alternatives
• Use of trusts, single-member LLCs, and Family Limited Partnerships
• Simultaneous exchanges – the problematic use of intermediaries and key drafting traps
• Deferred exchanges – disqualified parties and safe harbors
• Techniques to solve the problem of “boot” in a transaction, including special allocations, installment sales, cross purchases and redemptions

Day 1 – May 3, 2013:

• Reverse exchanges, parking transactions, build-to-suit exchanges
• Changes to the “related party” transaction rules
• Problems associated with over-leveraged property
• Alternatives to like-kind exchanges, including mixing bowl transactions, leveraged acquisitions and freeze partnerships
• Circumstances when alternatives to like-kind exchanges are the better choice

Faculty:
Brian J. O'Connor is a partner in the Baltimore office of Venable, LLP, where he is co-chair of the firm’s tax and wealth planning group. He provides sophisticated tax and business advice to closely-held and publicly-traded businesses and their owners. Before joining Venable, Mr. O’Connor was an attorney-advisor in the Office of the Chief Counsel of the IRS, where he worked on high profile legislative projects, regulations and other published guidance relating to pass through entities. Mr. O’Connor received his J.D., magna cum laude, from Washington and Lee University School of Law and his LL.M. in tax law, with distinction, from Georgetown University Law Center.

Choice of entity for service-based businesses, particularly for professional services entities like law, medical and dental practices, are significantly different than for businesses that produce or market tangible goods. Service-based businesses have regulatory and liability risks that are different than companies that produce goods. They also generate income that may be treated differently for federal tax purposes, including application of the new Medicare tax under health care reform. Furthermore, the management and ownership of service-based businesses, and the way they are financed indicate different entity selections than for goods-based companies. This program will provide you with a sophisticated guide through the legal, practical and tax-based considerations of choosing an entity for a service-based entity, with an emphasis on professional practices.

• Sophisticated choice of entity consideration for service-based business, including professional practices
• Special liability, regulatory and tax issues for law, medical and dental practices
• Issues for new entities and entities that change form because of changes in law, owner circumstances, or business
• Decision points in choosing LLPs v. LLCs v. PCs for professional practices
• Major self-employment tax and fringe benefit considerations, including new Medicare tax
• Using multiple entities to achieve variable ownership, management and tax goals
• Major income tax considerations at the entity and owner levels, including allocation and use of losses and the treatment of startup costs

Faculty:
Alson R. Martin is a partner in the Overland Park, Kansas office of Lathrop and Gage, LLP, where he has a national practice focusing on business law, taxation, health care, and retirement plans. He is a Fellow of the American College of Tax Counsel and the American College of Employee Benefits Counsel. Mr. Martin is the author of "Limited Liability Companies and Partnerships" and the co-author of "Kansas Corporation Law & Practice (Including Tax Aspects)." He is the president and a director of the Small Business Council of America. Mr. Martin received his B.A., with highest distinction, from the University of Kansas, and his J.D. and LL.M. from New York University School of Law.

Most electronic files contain unseen information about when and how they were created, and how they were edited over time. In legal documents –pleadings, briefs, letters and even email – this information can be highly sensitive, revealing confidential information such as the true nature of a client’s position, its negotiating strategy, or otherwise unknown or misrepresented facts. Discovery of this information by an adversary can be both highly damaging to a client’s case and may constitute an ethical breach by a lawyer. In the same way, if you discover this information in an adversary’s documents, it may greatly aid your client’s case. But this area is fraught with significant ethical issues. This program will provide you with a guide to ethical issues in shielding your client’s metadata from disclosure and using the metadata you find in an adversary’s documents.

• Ethical issues in your protecting your client’s metadata and in using the metadata of adversaries
• Duties of competency, confidentiality, zealous representation, and preserving the attorney-client privilege
• Are attorneys required to find and destroy their clients’ metadata?
• Can attorneys ethically look for metadata in the electronic files sent to them by an adversary and use it?
• Metadata issues in the creation and exchange of email
• Best practices to avoid ethical liability and adverse outcomes in a case

Faculty:
Elizabeth Treubert Simon is of counsel in the Washington, D.C. office of Vorys, Sater, Seymour and Pease LLP, where the primary focus of her practice is the defense of attorneys and other professionals, trademark and copyright infringement litigation, and insurance coverage litigation. She also provides counsel to insurers regarding insurance coverage and counsels clients regarding professional ethics and attorney disciplinary procedures. Ms. Simon is a member of the Committee on Professional Discipline of the New York State Bar Association. She received her B.A. and M.S. from the University of Pennsylvania and her J.D. from Albany Law School.

Changes in the way law is practiced, a difficult legal economy that can create disputes between lawyers and their clients, and the unstoppable spread of technology have created a range of new ethical issues for lawyers. As these changes permeate law practice, lawyers find themselves confronting gray areas about how the old rules apply to new fact patterns. This annual program will provide you with a wide-ranging discussion of ethical developments in the context of changes to law practice, including notable developments in conflicts of interest, confidentiality and the attorney-client privilege, ethics in co-counsel and referral relationships, the use of social media by lawyers and more.

Day 1: May 9, 2013:

• Ethical issues in dealing with dishonest clients and loss prevention in a difficult economy
• Attorney-client privilege and confidentiality developments
• Notable new cases in conflicts of interest, part 1

Day 2: May 10, 2013:

• Ethics in co-counsel and referral relationships
• Ethical issues when attorneys use social media – LinkedIn, blogs, Facebook
• Notable new cases in conflicts of interest, part 2

Faculty:
Lucian T. Pera is a partner in the Memphis office of Adams & Reese, LLP. His practice includes professional malpractice litigation as well as counseling lawyers and law firms in the area of ethics and professional responsibility. He was a member of the ABA’s Ethics 2000 Commission and is co-author of "Ethics and Lawyering Today," a national e-mail newsletter on lawyer ethics, which is accessible at: www.ethicsandlawyering.com. Before entering private practice, he served as a judicial clerk to Judge Harry W. Wellford of the U.S. Court of Appeals for the Sixth Circuit. Mr. Pera received his A.B. with honors from Princeton University and his J.D. from Vanderbilt University School of Law.

There is a bewildering array of estate planning vehicles available to clients who want to provide for the educational expenses of children or others. They range from state-sponsored plans that are comparatively inflexible but tax-favored to private plans that are more flexible but might carry fewer financial incentives. The tax treatment of these vehicles – form statutorily-defined plans to various forms of trusts to custodial accounts – vary widely. There are also issues of control (how soon does a child or other beneficiary gain control of the funds, if ever?), the eligibility of beneficiaries, and what type of expenses may be covered. In each alternative, there are sophisticated tax, financial control and other tradeoffs. This program will provide you with a framework for understanding the range of alternatives and the practical financial, tax and control tradeoffs of each alternative.

• Detailed review of alternatives for funding the educational expenses of children or others
• How the “kiddie tax” impacts the use of various education funding plans
• State-sponsored v. Independent 529 Plans – tax and control tradeoffs of each
• Coverdell Education Savings Accounts (ESAs) – option for college and K-12 expenses
• Use of custodial accounts under UTMA and UGMA
• 2503(c) Trusts and the annual exclusion
• Crummey Trusts for multiple beneficiaries and children who are not minors
• Integration with larger estate plans

Faculty:
Blanche Lark Christerson is a managing director at Deutsche Bank Private Wealth Management in New York City, where she works with clients and their advisors to help develop estate, gift, tax, and wealth transfer planning strategies. Earlier in her career she was a vice president in the estate planning department of U.S. Trust Company.  She also practiced law with Weil, Gotshal & Manges in New York City. Ms. Christerson is the author of the monthly newsletter “Tax Topics." She received her B.A. from Sarah Lawrence College, her J.D. from New York Law School and her LL.M. in taxation from New York University School of Law.

When a lawyer joins another existing law firm there are major ethical issues for both the lawyer and the law firm. The law firm must conduct due diligence on the lateral transfer – whether an associate or a partner – to ensure competence and uncover any history of ethical complaints in order to limit the firm’s exposure to liability. Sophisticated conflict checks not only of existing clients but also prospective clients of the lawyer and law firm need to be conducted. Steps must also be taken to ensure the preservation of the attorney-client privilege in ongoing matters as cases. There are also seemingly mundane but very important issues related to communications with clients an attorney hopes to bring with him or her to the new firm and and file retention issues. This program will provide you with a real-world guide to the range of ethics issues for lawyers and law firms when lawyers join a new firm.

• Framework of ethical issues when lawyers join a law firm
• Essential due diligence by law firm on lawyer joining the firm, including ethics background checks
• Sophisticated conflicts checks of new and potential client bases of lateral hire and the law firm
• Preserving the attorney-client privilege on ongoing matters and confidentiality issues
• File retention and communicating with old clients once a lateral transfer is made
• Special issues when a solo practitioner joins a multi-lawyer firm
• Issues related to malpractice insurance coverage

Faculty:
Sue C. Friedberg is a partner in the Pittsburg office of Buchanan, Ingersoll & Rooney, PC. She is associate general counsel of the firm and responsible for guiding its attorneys in meeting the standards of ethical law practice. She supervises the firm's conflicts of interest review process and new business intake functions, and provides counsel for the firm as a business entity. Earlier in her career, she focused on corporate finance, securities law, and general business transactions. Ms. Friedberg earned her B.S., magna cum laude, from Georgetown University and her J.D., cum laude, from the University of Pittsburg School of law.

Communications with judicial tribunals or an administrative panel can impact the outcome a case or controversy.  The ethical rules governing these communications are complex – with whom may you communicate, when and in what form – and can easily lead to ethical pitfalls. Attorneys must zealously represent their clients, but to what extent can they remain silent about unfavorable facts or not disclosure certain elements of adverse law, including unpublished case law? What standards of knowledge under the ethics rules must attorneys satisfy in their communications with tribunals? And when do communications with or a relationship with the judge trigger judicial disqualification? This program will answer these and other questions, and provide you with a real world guide to the ethical pitfalls of communications with judicial and administrative tribunals.

• Ethics of communicating with judicial and administrative law tribunals
• Ethical duty to disclosure unfavorable facts v. duty not to misstate material facts
• Disclosure of adverse law, including unpublished case law
• Knowledge standard of attorneys litigating before a tribunal
• Ex parte communications with the courts
• Judicial disqualification based on relationships with litigants or lawyers, or past employment of judge

Faculty:
Thomas E. Spahn is a partner in the McLean, Virginia office of McGuireWoods, LLP, where he has a broad complex commercial, business and securities litigation practice. He also has a substantial practice advising businesses on properly creating and preserving the attorney-client privilege and work product protections. For more than 20 years he has lectured extensively on legal ethics and professionalism and has written “The Attorney-Client Privilege and the Work Product Doctrine: A Practitioner’s Guide,” a 750 page treatise published by the Virginia Law Foundation. Mr. Spahn has served as member of the ABA Standing Committee on Ethics and Professional Responsibility and as a member of the Virginia State Bar's Legal Ethics Committee. He received his B.A., magna cum laude, from Yale University and his J.D. from Yale Law School.

Law firms break up for many reasons – financial underperformance, inter-personal disputes among partners, loss of clients, and retirements. Once a rare occurrence, law firm breakups have become commonplace because of the continuing economic pressures on lawyers and law firms. The rising trend in law firms dissolving places renewed focus on the many and substantial ethical issues that the dissolving firm, its departing partners, and the new firms which the lawyers form or join must all address. The ethics issues include conflicts checks in ongoing representations, client notifications and transfers of files, confidentiality and more. Perhaps the biggest issue is that of the “unfinished business” doctrine, which may require attorneys in an ongoing representation to share fees with partners from his or her old firm. This program will provide you with a real-world guide to understanding major ethics issues for law firms and lawyers when law firms break up.

• Ethics issues for lawyers and law firms when firms break up
• Client notifications, rights to and transfers of files
• Clearing conflicts in ongoing representations that move when lawyers move on
• Confidentiality issues
•  “Unfinished Business” doctrine – mandatory sharing of fees with partners of an old firm
• Special issues depending on whether a firm is a PC, LLC or LLP

Faculty:
Douglas Richmond is Senior Vice President in the Professional Services Group of AON Risk Services, where he consults with the company’s law firm clients on professional responsibility and liability issues. He is a member of the American Law Institute, the American Board of Trial Advocates, the International Association of Defense Counsel, and the Federation of Defense and Corporate Counsel. Mr. Richmond teaches legal ethics at the Northwestern University Law School and is a regular instructor at the National Institute of Trial Advocacy. Mr. Richmond received his B.S. from Fort Hays State University, his M. Ed. from the University of Nebraska, and his J.D. from the University of Kansas.

Thomas E. Spahn is a partner in the McLean, Virginia office of McGuireWoods, LLP, where he has a broad complex commercial, business and securities litigation practice. He also has a substantial practice advising businesses on properly creating and preserving the attorney-client privilege and work product protections. For more than 20 years he has lectured extensively on legal ethics and professionalism and has written “The Attorney-Client Privilege and the Work Product Doctrine: A Practitioner’s Guide,” a 750 page treatise published by the Virginia Law Foundation. Mr. Spahn has served as member of the ABA Standing Committee on Ethics and Professional Responsibility and as a member of the Virginia State Bar's Legal Ethics Committee. He received his B.A., magna cum laude, from Yale University and his J.D. from Yale Law School.

There is an inherent financial tension in providing legal services: A client is completely dependent on the advice, counsel and representation of a lawyer but is often resistant to paying the lawyer fair value for those services, particularly when the outcome of a case is unfavorable or a transaction fails. Legal fees are often the source of ethics complaints against lawyers with clients alleging fees were never clearly explained or are excessive. This leaves a lawyer in the excruciating position of having continuing obligations to a client at the same time as the client is refusing to pay for the lawyer’s services. This program will provide you with a real-world ethics guide to establishing fees, obtaining client agreement, describing work and costs, collecting fees for legal services, and ending a representation when a client refuses to pay.

• Ethics issues in establishing, billing and collecting attorneys’ fees
• Common traps in timesheets and descriptions of work
• Types of work and uses of time that cannot be billed
• Double billing, duplication of work, transient billers, and internal conferences
• Cost recovery issues v. billing for time
• How to end a representation when a client refuses to pay and ongoing ethical obligations to the client

Faculty:
Brian S. Faughnan is special counsel in the Memphis office of Thomason Hendrix Harvey Johnson & Mitchell, PLLC, where he represents clients in a wide variety of matters at the trial level and on appeal. He counsels lawyers and law firms on a wide variety of issues surrounding legal ethics and professional responsibility. He is the chair of the Tennessee Bar Association’s Standing Committee on Ethics and Professional Responsibility, a reporter for the committee’s rules revision project, a member of the Association of Professional Responsibility Lawyers, and a member of the Media Law Resource Center’s Ethics Committee. Mr. Faughnan received his B.A. from Rhodes College and his J.D., magna cum laude, from the University of Memphis School of Law.

Thomas E. Spahn is a partner in the McLean, Virginia office of McGuireWoods, LLP, where he has a broad complex commercial, business and securities litigation practice. He also has a substantial practice advising businesses on properly creating and preserving the attorney-client privilege and work product protections. For more than 20 years he has lectured extensively on legal ethics and professionalism and has written “The Attorney-Client Privilege and the Work Product Doctrine: A Practitioner’s Guide,” a 750 page treatise published by the Virginia Law Foundation. Mr. Spahn has served as member of the ABA Standing Committee on Ethics and Professional Responsibility and as a member of the Virginia State Bar's Legal Ethics Committee. He received his B.A., magna cum laude, from Yale University and his J.D. from Yale Law School.

In every industry, employers are increasingly relying on independent contractors over traditional full-time employees to grow their businesses. Contactors give employers substantial flexibility – they are able to tap certain specialized skills without the risk of a full-time hire, they are able to structure performance based compensation arrangements without the financial risk of guaranteed salaries or benefits, they are also able to make quick changes to the composition of their workforce if a contractor or initiative does not work out. However, the risk is if the independent contractor relationship is not properly documented, the employer has unlimited liability for contactor activity and substantial tax liability on compensation paid to the contractor. This program will provide you with a practical guide to drafting independent contractor agreements, including the term of an agreement, compensation, major tax issues, reporting and the limitation of liability.

• Drafting major provisions of independent contractor agreements
• How independent contractor agreements differ from employment agreements
• Term of agreements – fixed term and tied to attaining performance benchmarks
• Compensation – fixed and performance-based
• Liability issues – limiting employer liability for certain forms of contractor conduct
• Training of contractors and reporting back to employer
• Tax traps – factors that may trigger employer liability for FICA

Faculty:
Raymond W. Bertrand is a partner in the San Diego office of Paul Hastings LLP, where he represents employers in a wide range of employment matters. His litigation practice includes wage and hour, discrimination, harassment, retaliation, leaves of absence, contract disputes, wrongful discharge, whistleblower, trade secrets and other types of employment-related matters. In the wage and hour context, he also represents clients before the U.S. Department of Labor and state regulators. He also authors the wage and hour section of Matthew Bender’s“California Labor & Employment Bulletin” and has authored various articles on wage and hour matters. Mr. Bertrand received his B.A. from State University of New York Binghamton and his J.D. from Albany Law School.

S Corps & LLC Mergers, Part 1 and Part 2
May 29 & 30, 2013

Merging or otherwise combining S Corps and LLCs is unlike merging or combining C Corps. S Corps are brittle organization. If you fail to respect their many statutory restrictions, substantially adverse tax consequences follow. LLC are eminently flexible but that flexibility comes with substantial tax and business law complexity. The familiar patterns of merging C Corps are not easily translated to S Corps and LLCs. In addition to business and tax law variations, there are special considerations in due diligence, the application of state and local sales taxes to asset transfers, and the impact of the combination on carefully planned incentive compensation plans. This program will provide you with a practical guide to planning and drafting the operative agreements for merging or otherwise combining S Corps and LLCs.

Day 1: May 29, 2013:

• Structuring mergers involving S Corps and/or LLCs and partnerships
• Business law and tax differences between mergers involving pass-through entities differ and those involving C Corps
• Practical tradeoffs of asset versus equity combinations
• Special considerations involving S Corp mergers – triggering hidden taxes, losing S Corp eligibility, structuring restrictions
• Benefits of treating stock transactions as asset sales under IRC 338(h)(10)

Day 2: May 30, 2013:

• Structures for merging or otherwise combining LLCs and partnerships
• Special due diligence considerations of merging pass-through entities
• Framework of special tax issues for mergers involving LLCs and partnerships, including entity- and member-level treatment
• State and local sales tax issues on transfer of assets in the merger
• Incentive compensation issues
• Common pitfalls and drafting tips

Faculty:
Ziemowit T. Smulkowski is a partner in the Chicago office of Paul Hastings, LLP, where his concentrates his practice in federal income tax issues related to all aspects corporate and business transactions, including mergers and acquisitions, venture capital funds, real estate investments, and management compensation. He represents clients in the acquisition and disposition of closely held businesses, debt and equity investments in real estate joint ventures, commercial loan transactions, employee buyouts of businesses and more. He also represents clients in tax controversy matters. Mr. Smulkowski received his B.A. from Loyola University in Chicago and his J.D. from Northwestern University School of Law.

The business of law – the necessity of ensuring that lawyers are paid and expenses covered – sometimes raises uncomfortable ethical issues, especially when a representation produces an outcome that disappoints client expectations. Lawyers are in the business of offering their learning, expertise and skill to clients, but are subject to restrictions on what they can charge and how they can collect those fees. The advent of alternative fee arrangements, such as fixed fee arrangements, and evolving methods of practicing law, such as outsourcing, raise old questions about the reasonableness of fees and fee sharing. This program will explore the ethical between zealous representation and an attorney’s right to be paid for his or her work in the context of transactional work and litigation, including advancing expenses, time sheet traps, outsourcing work and alternative fee arrangements.

• Attorney ethics issues in billing fees and expenses in transactional and litigation representations
• Time sheet traps, internal conferences, transient billers and more
• Issues in alternative fee arrangements and contingency-based cases
• Fees paid by third parties and relationship to duty of confidentiality
• Sharing fees with other lawyers and non-lawyer employees of their firm
• Advancing litigation and other expenses
• Fee disputes, including retention of client files until the dispute is resolved or charging interest

Faculty:
Thomas E. Spahn is a partner in the McLean, Virginia office of McGuireWoods, LLP, where he has a broad complex commercial, business and securities litigation practice. He also has a substantial practice advising businesses on properly creating and preserving the attorney-client privilege and work product protections. For more than 20 years he has lectured extensively on legal ethics and professionalism and has written “The Attorney-Client Privilege and the Work Product Doctrine: A Practitioner’s Guide,” a 750 page treatise published by the Virginia Law Foundation. Mr. Spahn has served as member of the ABA Standing Committee on Ethics and Professional Responsibility and as a member of the Virginia State Bar's Legal Ethics Committee. He received his B.A., magna cum laude, from Yale University and his J.D. from Yale Law School.