Friending a Represented Opposing Party

Some time ago, in a blog far, far away, we explored the topic of social media and discovery. In particular, we had concluded that it would likely be a violation of Rule 4.2 of the Rules of Professional Conduct for a lawyer to try to “friend” an opposing party she knew to be represented in that matter.  The conclusion was based upon the fact that a Facebook friend request was “a communication” under the Rule, and that the purpose of the communication was to obtain information related to the matter for which the party was represented.  As you know, Rule 4.2 prohibits communications about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter.  Seemed like an easy question with an easy answer at the time.

Fast forward to July 2018, where the Ethics Committee has been studying a proposed ethics opinion on this very issue.  An initial draft of the opinion reached the very same conclusion that we did.  The latest opinion that was circulated, Proposed 2018 FEO 5, reached the opposite result.  Opinions #4 and #7 of the proposed ethics opinion state that either the lawyer, or any person at the lawyer’s direction, may request access to restricted portions of a represented person’s social network presence, so long as there is no misrepresentation.  In other words, the proposed opinion finds that a lawyer or his agent can make a friend request on Facebook to a person the lawyer knows to be represented.  Opinion #5 of the proposed ethics opinion also permits the lawyer to post or communicate directly on the represented person’s Facebook feed so long as the communication is not “intended to elicit information about the subject of the representation….”  Wait, what?  I cannot imagine why a lawyer, who has no relationship with a represented opposing party, would send a friend request or thereafter post on that person’s timeline, except to garner useful information about the subject matter of the representation.

Well, there are certainly arguments on both sides of this issue.  Some believe that seeking truth or exposing the truth is the most important goal and that an interpretation offering more protection to the represented individual frustrates that goal.  While discovery tools are available, or hiring a private investigator is possible, it certainly would be more expedient to be able to see what the represented person (or their friends or family) is posting online.  There may be an argument that traditional discovery may not be available or is not likely to extract the same information as Facebook postings.

At the same time, others argue that some people do not understand the full implications of accepting friend requests.  Some small business owners, for example, believe that social media is the perfect platform for growing their business, and have an “accept all friend requests” policy.  Others may recognize the lawyer’s name and know enough to decline any friend request by the lawyer, but certainly would not know the name of the lawyer’s paralegal making a friend request.  Does the omission of certain information about the person making the request somehow make that request misleading? Lawyers do have an obligation to advise their clients about social media posts and the dangers of over-sharing. So, is it the client’s responsibility to be more vigilant about who they allow into their network?

There is no doubt that a tension exists between the protection of the represented person under Rule 4.2 and the desire to find the truth.   To me, the friend request issue and its resolution may turn upon the answer to three questions: First, should Rule 4.2 be interpreted to prohibit communications between a lawyer and represented person that, while not about the subject of the representation on their face, are intended to discover or obtain information related to the subject matter of the representation?  To put it another way, does interpretation of the Rule in this instance turn upon the purpose of the lawyer’s communication, or on the actual communication itself? Second, can the lawyer, through a friend request, invite herself into a conversation with a represented person, hoping to glean some useful information, without disclosing the lawyer’s purpose or disclosing that she represents another party in the matter.  Rule 4.3, dealing with unrepresented persons, requires that much.  If we are making an exception to permit online friend requests, should we apply the minimal protections in 4.3? Third, how do we resolve the tension between truth-seeking and client protection?  Should one goal be placed above the other.  Rule 4.2 is not the only rule that would tend to, in some instances, frustrate the fact-finding goal.  The confidentiality rule is another, but there are exceptions to that rule that appear to serve a greater good or a weightier goal.   One of those exceptions is candor to a tribunal. With this opinion, the State Bar may be blurring the lines, if not carving out an exception, for certain online communications.

Comment [1] to Rule 4.2 spells out the three primary concerns addressed by the Rule, which help preserve “the proper functioning of the legal system”:

  • Protecting a person who has chosen to be represented by a lawyer in a matter against overreaching by other involved lawyers;
  • Protecting that individual from interference by involved lawyers with the attorney-client relationship; and
  • Protecting that individual against uncounseled disclosure of information relating to the representation.

I believe it is primarily the third concern that merits further analysis.  The Ethics Committee, at its July meeting, sent this proposed opinion back to subcommittee for further study.  While the current interpretation of Rule 4.2 in Proposed 2018 FEO 5 feels wrong, I usually need more than a feeling or gut reaction to justify an outcome.  On the other hand, I tell my clients, never ignore your gut.

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Could New Advertising Rules be on the Horizon?

Have you ever been confounded by the complexity of the advertising rules, especially with respect to direct mail/email communications?  When must you use a disclaimer and what must it say?  How big must the disclaimer be and where must it be placed?  What color and font can you use for the disclaimer? The ABA Standing Committee on Ethics and Professional Responsibility is proposing significant changes to the advertising rules, and plans to present its recommendations to the ABA House of Delegates in August.  Your NC State Bar has been watching this process for a while now, but is certainly not waiting to see what the ABA will do.  A special committee to study the new proposed ABA Model Rules on advertising has been convened by the State Bar, and I am excited to be serving on the committee.

Why is the ABA considering these changes to the Model Rules?  First, the ABA wants to encourage national uniformity in the advertising rules and a simplification of the rules.  Each state’s advertising rules look very different, and many are very complex.  Second, the ABA wants to accommodate changes in the legal profession from technology, competition, and cross-border practice.  Certainly the legal profession has changed since the advertising rules were adopted, and many of the provisions are outdated given technological advances and social media.  Third, the ABA wanted to relieve regulators of unnecessary burdens.  Nearly all complaints in advertising grievances are from competitors, not clients.  If there truly is little risk that prospective clients will be misled, then regulators should not be spending time disciplining attorneys for violating what amount to technical violations of very specific rules.

Here is one example of a proposed modification by the ABA Standing Committee.  Our NC Rule 7.3(c) has very specific requirements for targeted direct mail solicitations, including what the advertising disclaimer must say, the size of the font, the placement of the disclaimer, and the conspicuousness of the disclaimer relative to other printing on the envelope and in the letter.  The draft ABA opinion would completely eliminate Rule 7.3(c) as it exists today and the comments relative to direct mail solicitations.  The proposed rule would define “solicitation” as a “communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.”  The proposed ABA Rule 7.3 goes on to prohibit solicitation by “live person-to-person contact” subject to certain exceptions, but specifically excludes written/electronic communications from the prohibition, unless the recipient has made known a desire not to be solicited or if the solicitation involves coercion, duress or harassment.

If NC adopted this kind of rule change, attorneys could spend more time practicing law, and less timing measuring the size of their disclaimers. State Bar staff could worry about bigger problems than whether an attorney’s disclaimer language meets the conspicuousness test.  Heck, my clients wouldn’t need me to review their ads as much, but I’m definitely OK with that!

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Harness the Power of Feedback

When we think about communications with our clients, we are often focused on our obligations under Rule 1.4 of the North Carolina Rules of Professional Conduct.  As a result, we often view communication with a client in somewhat clinical terms: reporting information to the client, advising the client about his or her rights, explaining the pros and cons of pursuing a claim or defense, and obtaining the client’s consent to a particular course of action.  But have you ever considered expanding the scope?  For example, would you consider asking your client for feedback on how you are doing?

Extending an invitation for feedback from your client may not seem like a fun exercise and may even feel a little uncomfortable.  After all, most of us strive to be self-assured, and asking for feedback may feel like self-doubt.  However, asking for feedback may not only enhance the relationship you have with your client, it may also avoid misunderstandings, improve your practice, and importantly, provide some welcomed affirmation.

Consider this: just by extending the invitation for feedback, you will have communicated to your client that you care about him or her, that you are interested in what he or she has to say, and that you are listening.  The invitation will likely be well-received, appreciated, and may reinforce your client’s confidence in you.

Further, by giving the client an opportunity to provide some feedback, you may uncover a misunderstanding of which you were previously unaware.  Such a discovery provides a key opportunity to address a relatively small issue early on, before it potentially snowballs into a larger problem.  Many disciplinary complaints stem from breakdowns in communication between the attorney and client, and addressing concerns in a proactive manner may just prove to be the stitch in time that saved nine.

If the client is forthcoming, you may learn about areas for improvement. For example, you may learn that while email communication is easiest for you, your client is not computer-savvy and prefers to receive phone calls.  Or you may learn that your client was expecting to hear from you every day, and you now have an opportunity to manage that expectation.  Receiving this type of feedback may flag common issues that you can address across your practice to enhance your relationship with all clients.

Finally, you may actually get some positive feedback, and who doesn’t want that?!

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Professional Relationships – How Important is it to be “Right?”

Raising a very strong-willed seven-year old daughter definitely has its challenges.  One of the many life lessons that we want her to learn is the lesson of how to properly interact with her peers.  One concept we recently discussed is when it is okay not be “right.”  For example, our daughter often corrects her friends when they say or do something that she knows isn’t correct.  Sometimes it is helpful, and sometimes it is frankly annoying.  We have tried to explain to her that unless it is something very important, it is okay to let mistakes go.  She was very confused by this statement.  It is hard for her to grasp the concept.  If something isn’t right, shouldn’t it be corrected?  I asked her if she would rather have good relationships with her friends or always be right.  She stated, “I want both.”  We have some work to do.

This conversation made me think about our interactions with each other as professionals.  Have you ever had a conversation with a peer who corrected you constantly?  Are you the one who constantly corrects other professionals?  Their pronunciation of words?  When you know what the person meant, but they used the wrong word?  Have you ever corrected the word “your” to “you’re” in an email where it was not critical?  Is this behavior professional?  It probably depends.

Correcting a small issue that will not affect anyone else is probably not a good idea, particularly in public.  You may embarrass your colleague which will not foster a great professional relationship.  However, if the person’s mistake could impact others in a negative way, it may be necessary.  If that is the case, perhaps you should attempt to point out the mistake in private, if possible.  It is also helpful to avoid using words or phrases that come across as pompous and condescending.  For example, instead of saying, “actually, it is pronounced voir dire,” you could say, “I have always had a hard time with those Latin words.  I heard the judge pronounce it “vwar dir.”

Manners are a huge part of professionalism and are not something we should focus on only as a child.  If you catch yourself correcting someone for something relatively unimportant, you may want to pose the same question to yourself that I asked my daughter?  Would you rather have a good relationship with your fellow professionals, or be right all the time?  You likely cannot have both.

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Choose to Light Lamps

I recently attended a funeral for a friend’s mother, and was moved by the service and the remarks made about this wonderful woman.  I learned that my friend’s mother lived by these words: “Attitude is everything. You can either choose to curse the darkness around you, or you can choose to light lamps.  Always choose to light lamps.”  I love this metaphor.  I certainly see darkness in my profession from time to time.  Attorneys are angry about grievances filed by clients they believe are ungrateful or unreasonable.  The State Bar issues discipline against attorneys who are not managing their trust accounts as the rules require, and the feeling is that the punishment is too harsh. Lawyers are losing their licenses to practice law for lapses in judgment that cause harm to the profession.

I have also seen lawyers who have taken the grievance process and disciplinary proceedings in stride.  Instead of cursing the client who brought the grievance, the attorney took the opportunity to re-evaluate her law firm’s client service and responsiveness, and make positive changes in her practice.  Instead of cursing the State Bar staff or the grievance process, another attorney found out something he did not know before.  As part of his written response to the State Bar and given the nature of the allegations against his character, we advised the attorney to get character letters from his colleagues and those in the community to support his good character for truthfulness.  The outpouring of support was uplifting, and the attorney learned how well his peers and others thought about and appreciated him.  Without the State Bar grievance process, he may never have known how much he was loved and respected.  In another instance, where an attorney faced losing his law license, he reconsidered whether the practice of law was truly his calling, and ended up finding more joy by following his passion to another profession.

These attorneys are just a few examples of those whose attitude made all the difference.  They chose to light lamps rather than curse the darkness.  I believe they came out better for having done so.

 

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When the Golden Rule Becomes a Local Rule

If you know a party is represented, must you notify opposing counsel before you seek an entry of default and default judgment against his or her client?

Rule 1.2(a)(3) of the North Carolina Rules of Professional Conduct provides that “[i]n the representation of a client, a lawyer may exercise his or her professional judgment to waive or fail to assert a right or position of the client.”  The comment to the rule explains:

Lawyers are encouraged to treat opposing counsel with courtesy and to cooperate with opposing counsel when it will not prevent or unduly hinder pursuit of the objective of the representation. To this end, a lawyer may waive a right or fail to assert a position of a client without first obtaining the client’s consent. For example, a lawyer may consent to an extension of time for the opposing party to file pleadings or discovery without obtaining the client’s consent.

See Comment to Rule 1.2(a)(3).

So what are an attorney’s obligations when the attorney knows a defaulting party is represented by counsel and that counsel has failed to file an answer to a complaint?  Should the attorney notify opposing counsel of his or her intention to seek an entry of default and default judgment?

Rule 1.2(a)(3) provides that this decision lies within the attorney’s discretion, and that he or she may—without his or her client’s consent—provide opposing counsel advanced notice.  Alerting opposing counsel to this type of procedural deficiency, and permitting him or her to correct it, epitomizes professional courtesy.  Still, many attorneys may zealously purse their client’s interests by forgoing such notice, which is entirely permissible under the North Carolina Rules of Civil Procedure and the Rules of Professional Conduct.

However, providing this type of notice is not a matter of professional courtesy in Mecklenburg County: it is a requirement.  The 26th Judicial District (Mecklenburg County) has enacted local rules which require an attorney to give opposing counsel advance notice:  General Civil Rule 16.6 for the Superior Court Division requires an attorney to provide ten (10) days’ written notice to opposing counsel (where it is known that the opposing party is represented) before seeking entry of default.  General Civil Rule 15.4 for the District Court Division takes the requirement a few steps further, stating:

The 10-calendar-day notice shall be given immediately after the expiration period for filing the answer and no later than five business days after the expiration period.  A violation of this rule will cause the case to be identified as delinquent and may subject the case to dismissal at the discretion of the Chief District Court Judge or presiding judge.

Rule 15.4, General Civil Rules 26th Judicial District, District Court Division. That is, if the attorney knows that a defaulting party is represented by counsel, and fails to provide written notice of his or her intention to seek entry of default (and do so quickly), the case is subject to dismissal.  This is a steep penalty for the zealous advocate who failed to check the local rules before seeking entry of default.

While it is always good practice to extend professional courtesies where we can, it is crucially important to read the local rules of the district where our cases are pending.

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The Law Trumps a Client’s Directive for Payment

Suppose you are a personal injury attorney.  The client has agreed to the settlement and when it comes time to go over the settlement disbursement summary, the client balks at paying a particular medical provider.  Suppose, also, that this medical provider has perfected a valid lien pursuant to G.S. §44-49(a).  Until recently, the State Bar had said that the attorney may pay the medical provider over the client’s objection, with the implication that the decision to do so was within the sound discretion of the attorney.  No more.  Now, pursuant to a recent ethics opinion (2017 FEO 4), if the settlement funds are subject to a perfected statutory lien, the attorney MUST pay the medical provider, even over the client’s objection.

The ethics opinion does indicate that if the client has a valid dispute with the provider about the amount of the charges or whether they were in fact incurred, the attorney must leave the disputed funds in trust.  The attorney may release the funds when the dispute is resolved.  The attorney must, however, inform the client that “absent a prompt resolution of Provider A’s claim that is satisfactory to both parties, Lawyer will eventually be obligated to deposit the funds into the court for disposition. In the interim, if a final judgment is entered on Provider A’s claim such that the claim is no longer in dispute, pursuant to N.C. Gen. Stat. § 44-50, Lawyer must pay Provider A over the client’s objections.”  This section of the opinion creates an affirmative duty to interplead the funds if there is no prompt resolution.  The attorney may not continue to hold the disputed funds indefinitely or even for a lengthy period of time.

Suppose the client then refuses to settle because he or she does not want to pay a provider, or perhaps your attorney fee either.  Well, that’s the subject of a different blog.

 

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Professional New Year’s Resolutions

It’s the time of year when people make personal resolutions for the coming year – eat less, exercise more, lose weight, spend more time with family, spend less time watching television, don’t sweat the small stuff, etc.  Personal resolutions are a good way to remind yourself of important goals to set for the upcoming year.  It’s also a good time of year to turn off the electronic devices temporarily, engage in some essential self-reflection, set certain professional goals, and most importantly lay out detailed, specific steps to achieve those essential professional goals in 2018.

Professional goals, just like personal resolutions, are individual and the results of introspection about your most important core values and priorities.  Adopting somebody’s else’s resolutions would defeat the essential purpose of the exercise. Setting aside some time in January to reflect on your 2018 professional aspirations will be well worth the investment, in my experience.

The following are just some examples for you to consider and to spark some thought in developing your own core professional values and goals for 2018:

  • Listen more, talk less; as saying goes, you have two ears and one mouth, and they should be used in relative proportion.
  • Live balanced; set boundaries for your clients/patients and your employer/supervisor and stick to them.
  • Work smart; find your most productive period of day and set aside that time to do work that requires concentration and protect it from interferences, except true emergencies.
  • Take vacations and time away from work every week to recharge and disconnect completely.
  • Write brief personal notes or letters to others on a regular basis; set a realistic goal and calendar a reminder.
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Wishing you a joyous holiday season

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Empathy Is at the Core of What We Do

Attorney at Law Magazine featured Deanna and Doug Brocker as Attorneys of the Month in the October edition. Read the article below or click here to read the magazine.

“…I just feel like kindness and empathy, in addition to trying to steer them on the right course, is what they need.”

You’d want Deanna or Doug Brocker at your side if you ever get in trouble and are sent to the principal’s office.

The husband and wife are the principals at Raleigh-based Brocker Law Firm. The firm represents lawyers, doctors, CPAs, Realtors, insurance agents, therapists, and various other professionals in matters involving ethics violations. Doug also represents the North Carolina State Board of Dental Examiners.

Doug served as trial and UPL counsel for The North Carolina State Bar for more than six years, where he investigated and prosecuted disciplinary violations, the unauthorized practice of law, and other similar matters. Deanna served as assistant ethics counsel for the State Bar for over 10 years.

The firm’s clients generally follow one of two paths to its door – either to get advice to avoid an ethics violation or after they have been cited for an ethics violation and need representation in front of a professional licensing board.

Deanna’s focus is primarily drafting attorney grievance responses and ethics counseling. Doug is the litigator.

“Part of the reason folks come to me is because they want to talk out an ethics issue that is a gray area, it’s nuanced. I love that back and forth and talking through complex situations. It’s almost like detective work. I’m asking questions and we are trying to work out the ethics issues,” said Deanna.

“Good professional people do things that violate rules and sometimes they do things they really shouldn’t have done, but it doesn’t make them terrible people or terrible professionals. We’re dealing in that gray area where we’ve got someone who committed a violation or did something wrong but the essential question is, what’s the appropriate thing to do with respect to protecting the public,” said Doug.

“When a client appears before a professional board, our goal is to put our clients in a much better position with respect to their licenses than they would be without us,” said Doug. “but sometimes, success may not be a matter of walking out with a unblemished license for our clients. Frankly, some of our clients don’t need to have a clean outcome. They need to be under some restrictions for their own sake.”

Kindness and Empathy

“I have clients that come to me and are in such a state of despair and I really feel that. Sometimes they’re depressed that they’ve done something wrong and that is just tearing them apart. They don’t know what to do and they’re desperate. I just feel like kindness and empathy, in addition to trying to steer them on the right course, is what they need,” said Deanna.

“Empathy is the most important attribute for a lawyer who does what we do. The clients want to know that we care about them and that we understand where they’re coming from; empathy is at the core of what we do,” said Doug.

“It’s very emotionally stressful for me to represent a professional client. I enjoy doing it,” said Doug, “but I feel the weight of everything that’s going to happen. I feel a huge responsibility if we take on a professional client and their license and their livelihood are on the line. The weight of something really bad happening to that person is crushing at times.”

“I think the reason both of us are drawn to this practice area is that character and integrity are really important to us. One of the things that gets me really worked up is when people are being untruthful with me. I don’t like it from a client and I don’t like it from the other side,” explained Doug. “If I feel like there’s somebody who is just trying to get by, get past something they’ve done without taking responsibility, I have a difficult time representing that person; life is too short for that.

“My values come into play in terms of who I am willing to represent,” Doug continued. “If I feel like I’ve got somebody who is honest and who has integrity, but has made a mistake, I’m willing to advocate for them. I want to actually be looking eye-to-eye with that person, looking at their body language, and getting a personal sense of whether this is somebody that I can spend 50 or 100 hours really putting my heart and soul into defending.”

Virtual Law Firm

“When I worked at a large law firm and did mostly civil litigation, I spent a lot of time chasing rabbits and I didn’t care for it. I saw a lot of client money being spent on what I considered nonsense,” recalled Doug.

When he launched the firm in the summer of 2006 and Deanna joined a few months later, they agreed on creating a virtual law firm. Changes in technology allowed them to just need a place for a law firm administrator and a conference room for client meetings. Most everything else done by the four-attorney firm is done virtually. “We’ve been able to do everything we need to represent clients zealously with our virtual arrangement – without all the additional expenses of a traditional law office.”

“Our goal is to keep overhead low,” said Doug. “A lot of our clients are paying out of their pockets so we need to be as lean as we can be for people to afford our representation.”

Gray Areas

“The older I get, the more gray I see, and I see very little black and white,” said Doug.

“If you are talking about somebody who has done something and the State Bar or other licensing board doesn’t have a clear prohibition or restriction concerning the conduct, generally it’s our position that if you tell us that’s wrong, our client won’t do it again, but you really shouldn’t be disciplining him or her if it wasn’t clear they shouldn’t be doing that,” said Doug

Because of the fluidity of legal marketing Doug and Deanna hold CLEs and speak to groups like the Raleigh Legal Marketing Association.

“Online advertising and social media are areas that are constantly evolving, but the rules of professional conduct remain relatively static. The lawyers who most often get in trouble with legal advertising are those who are creative, think outside the box, and seek to push the limits. The legal advertising rules tend to promote vanilla, uninteresting marketing materials,” said Deanna.

“We tell professionals ‘No, you can’t do that,’ nearly every day. It doesn’t matter whether they are friends, clients or colleagues. It’s not our job to tell clients what they want to hear but to give them sound and safe advice. At the same time, we like to brainstorm with clients about alternatives, or offer ethical ways to achieve the desired result, if possible,” added Deanna.

Wanderlust

Doug, Deanna and sons J.P., 19, and Luke, 17, are frequent travelers. “We love to travel and we make it a huge priority. It’s great because we get to spend time exclusively with our kids,” said Doug.

Doug, a cancer survivor, said, “Part of my philosophy is, I don’t know if there is a tomorrow, so if I can do it now and it’s feasible, I’m going to do it. That’s pretty critical to my outlook on things.”

Costa Rica, Hawaii, Alaska, Western and Eastern Europe, Mediterranean, Baltics, Rome, Athens, Turkey and most recently Iceland are but a few places they have visited. “Getting away from the stress of work is not the primary reason we like to travel. We are attracted to the experience,” explained Deanna.

“America is a great country, but we want the boys to learn and see people are doing other great things differently and doing things well in other countries,” said Deanna. “We try to learn about the local culture by trying to hook up with a local when we get there. We mix outdoor experiences, churches, history, antiquities, and architecture because of our sons who have differing interests.”

We Have to Laugh

In person, Doug and Deanna are warm, personable and easily given to laughter. “I love to laugh … I laugh at him,” giggled Deanna. “I’m not particularly funny,” added Doug. “I love to laugh but I’m not a joke teller. Considering the stress of the cases we deal with, we have to laugh – otherwise we’d go crazy. Sometimes we just have to laugh at some of the ill-advised things clients do.”

Living a balanced life is high on the couple’s list of priorities. “We like being the masters of our fates,” said Deanna.

“We try to turn off shop talk during dinner. Our sons get really irritated when we sit around the dinner table debating issues of professional ethics,” said Doug. “I’m afraid we are not always able to turn it off when we go home.”

“I’m failing in that miserably,” added Deanna. “Luckily, Doug and I get along wonderfully all the time. I know that sounds weird, but we really don’t argue about much of anything. It’s nice to have somebody who understands exactly what you do every day.”

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