Law Firm & Life
April 17, 2025
By Emily Poler
My approach to this blog has been to keep it fairly light by writing about celebrity defamation cases and tech-related copyright infringement with an occasional dip into my experiences growing a business. However, right now, there are way more important and disastrous things going on in the United States. For me, as a lawyer, I am particularly concerned about the rule of law, lawyers’ role in protecting the rule of law, and President Donald Trump’s attacks on the rule of law.
If you’ve been under a rock lately and haven’t heard about this, lucky you! Can I join you?
To bring those of you not following along up to speed and to share my pain, the Trump administration has taken aim at the rule of law in a whole bunch of different ways. Among other things, it is ignoring clear court orders, and trying to punish law firms that represent clients whom Trump doesn’t like or employ lawyers who, at one point, represented clients that Trump doesn’t like. In some cases, Trump has issued executive orders calling for the termination of government contracts with these firms and with companies represented by these firms, while also attempting to bar their attorneys from even entering federal buildings — a big problem if you’re a lawyer representing clients in federal courts.
Three firms — Perkins Coie, WilmerHale and Jenner & Block — have fought back and obtained an order blocking Trump’s executive order against them. I have to applaud the work of Williams & Connolly, the firm that has represented Perkins Coie, for some really excellent advocacy. If you’re at all curious about what really stellar legal briefs look like, I’d recommend checking out the materials they’ve submitted on behalf of their law firm client because they’re really well written. As they wrote, “The [executive] [o]rder is an affront to the Constitution and our adversarial system of justice. Its plain purpose is to bully those who advocate points of view that the President perceives as adverse to the views of his Administration, whether those views are presented on behalf of paying or pro bono clients.”
The judges hearing these cases have, thus far, uniformly ruled that Trump’s executive orders are blatantly unconstitutional because, among other things, they punish lawyers and/or law firms for their speech which, you know, is in direct violation of the First Amendment. (There are other huge issues as well, but I’m trying not to get too in the weeds here.)
Depressingly, several firms, including Skadden, Arps, Slate, Meagher & Flom and Paul Weiss, have chosen not to fight back against Trump’s executive orders and have, in fact, caved to Trump’s demands. Indeed, these firms have, among other things, agreed to donate their attorneys’ legal services to Trump’s pet causes. In the case of Skadden, which appears to have signed on without Trump even threatening them, this agreement requires Skadden to provide $100 million in pro bono services to the Trump administration and supposedly is in effect both while Trump is in office and beyond (at least this is what Trump says, so who knows how literally true it is). If you want to see something horrible, go to their website to see how they now proudly proclaim their role as Trump’s legal attack dogs.
Let me just start by saying, even though of course it should go WITHOUT saying, that none of this should be happening, especially in the United States where we have a Constitution that is clearly written to prevent such dictatorial actions. Moreover, while I’m furious and disgusted at the firms that caved to Trump, this should not be read as blaming the victim; they’re obviously terrified of having their businesses crippled. I think we all know where the real blame lies.
With that said, what are these firms thinking? How can they agree to these types of “deals” that are blatantly against the law, instead of standing up and fighting for the very laws that their attorneys promised to uphold? Moreover, how exactly does the leadership of these firms think they’re going to make money if laws don’t matter anymore? What would even be the point of having lawyers?
Does this sound extreme? Ok, maybe. Nonetheless, as has been VERY evident these past few weeks, constraints on unpredictable behavior and government corruption are important for a flourishing economy, because it is only in a healthy economy that businesses and individuals are able to do the kind of deals for which they hire attorneys like those at Skadden Arps and Paul Weiss. If everything goes to hell, there won’t be any work for them anyway.
March 19, 2025
As you may be aware from LinkedIn or something more one-on-one (a text, a phone call, gossip over a latte), effective March 1, 2025, the separate firms of Trachtman & Trachtman and Poler Legal have merged to form Trachtman and Poler. Together, we (Laura Trachtman and Emily Poler) will continue to represent clients in a range of commercial disputes, with an emphasis on partnership and intellectual property disputes and employment-related matters. There are a number of reasons we decided to boldly enter this new era, but mostly because working together will be better for us and, more important, better for our clients.
We’ve been setting up this merger for awhile and, as you may imagine, a lot of thought and energy has gone into it. Each of us has already learned a few things in the process, and we anticipate finding out even more as we move forward. So this seems like a propitious time to share a little bit about the good and the bad (luckily, not much ugly here) of how it went down.
Emily: For me, the hardest thing has been juggling creating a new firm while also handling all of my day-to-day legal work. When I started Poler Legal in 2017 there was so much I didn’t know about operating a firm, but since I didn’t have many clients there was plenty of time to get organized and learn as I went along. Now, I have a whole slate of clients, each with their own requirements and deadlines. So trying to put together a new firm while also handling active cases felt like trying to build an airplane while flying it at the same time. I realize this is a champagne problem; I’m also quite thankful the plane didn’t crash!
I’ve also been unpleasantly surprised by how hard it is to make the various tech platforms we individually use to work together. Setting up or reconfiguring accounts is so much harder than it should be. Syncing Clio, which tracked time for each of us separately prior to the merger, was far from a seamless process. And don’t get me started on Google, which is really a PITA as far as setting up a new email account so that it becomes the primary one. Champagne problems one again, but still.
On the other hand, having someone to partner with is GREAT. The best thing is that I now have someone who can serve as a gut check. As a litigator, my job is to take a position on behalf of my clients; it’s opposing counsel’s job to tell me my stance is wrong, unsupported, or just plain stupid. It can sometimes be hard to tell if they have a legitimate point or not. Now, Laura can provide an objective perspective and point out when I’m right and when (once in a rare while, I hope) I need to rethink my position.
Most of all, I am thrilled that after years of shouldering the burden alone for everything related to running a law firm (which, never forget, is also a business), I now have someone with whom to share the responsibility. It’s a fantastic feeling and an enormous relief.
Laura: The hardest aspect of this merger has been the 180-degree shift from how I worked before with my law partner and mentor — my Dad — who had taught me to take any case that came down the pike and learn to do it well. Such a reactive approach could be frustrating, as I sometimes found myself practicing in areas I didn’t particularly enjoy. When I started discussing partnering with Emily, and we outlined our plans for where we want this firm to go, it quickly became clear I needed to reshape my thinking and take a much more proactive approach to the type of work I want to focus on. While this means putting in more effort at the beginning, I think it’s going to result in a practice that makes me a lot happier with the work that I do — which will make me happier, full stop.
I’m also trying to be more proactive in developing content for this blog and LinkedIn. Again, this isn’t something I did previously — my suggestion to my Dad to write a legal blog was not met with approval — but I certainly enjoy it, so I look forward to it.
In the end though, the best thing about this merger is having someone to encourage (but not pressure) me to put in the work that will help our firm succeed. Moving from a reactive to proactive business model makes obvious sense, and I am grateful that Emily has so much knowledge and experience of it, and is generous with her time and energy to help bring me up to speed.
The other best thing is that being a solo practitioner can be isolating and stressful, so it’s such a liberating feeling knowing that the success of the firm is not all on me. It’s also pretty great having someone I trust who I can actually talk to about all the big and little issues that arise everyday in this legal game.
It’s a new era for both of us and we are both very excited for everything that is to come.
January 21, 2025
As you know, I’m interested in business development and am always looking to learn more. In search of new ideas and inspiration, I Googled “lawyer blog on business development.” Yikes!
On the bright side, one of the first things that came up was this worthy blog, which I routinely read. But after that it was pretty much a wasteland of cliched blather: Develop a network; have a personal brand (can we please retire this phrase?); maintain good relationships with clients; and, inevitably, be a thought leader! (another phrase I am so over).
Pretty empty stuff, right? If anything, I think the fact that so many people serve up the same trite advice proves that none of them actually possess a personal brand or provide thought leadership (is there an emoji for irony?). More importantly, none of these bloggers ever tell you much about how to do these things they suggest. Obviously, these people are trying to sell their services and don’t want to give away valuable advice. But why would I be confident they actually have any?
What’s more, such vague banalities make the reality of business development seem more mysterious and daunting than it actually is. So let’s see if we can simplify things with some real lessons from my own experience that I feel define the building blocks of business development.
I’ve learned that the origin point is to give serious thought to a few questions: Who are you? What exactly do you want to do? How do you want to communicate that? Who do you want to work and network with? That foundational work needs to happen before you hire a marketing, PR or social media person — or to at least take place from the get-go with any hires. I say this as someone who spent good money on a marketing consultant with bad results, partly because we hadn’t answered these questions at the start.
Perhaps the most important of those questions is, what exactly do you want to do? When I started my firm I worked on a very broad range of cases and matters, basically taking whatever came my way. Guess what? I ended up working on things I had absolutely no interest in. (I am 100% fine if I never, ever handle another ERISA matter). So why did I do it? Well duh, the idea of turning down a client for my brand-new practice was terrifying. But when I eventually started saying no, my work (and my life) became much more satisfying. I avoided cases that didn’t interest me and didn’t waste energy dealing with people I didn’t want to work with. That freed me to take on interesting cases and work with people I was happy to represent. Plus, it left me time to further refine my skills and deepen my knowledge of the substantive legal areas that I wanted my practice to focus on.
Another problem with taking on work you don’t want: Such cases lead to meeting people, like co-counsel and opposing counsel, who work in those areas. They get to like you (that’s nice!). They think of you when something comes up they could refer to you (also nice!). But then you end up with more cases you don’t want (not nice). So it becomes something of a vicious career circle.
Once you know what type of work you want to take on, the next step is determining what clients you’re open to working with. Me, I have a strict “no assholes” policy. Litigation can be a very difficult, frustrating and draining experience, and if I get even a hint that a potential client is going to vent their anger with the process on me or my team, they will need to find another firm. Likewise, if a potential client comes to me after having been fired by another attorney, I’m not taking them on — no matter how much they’re willing to pay. It’s just not worth the possible stress. Ultimately, picking who I work with and what I work on makes it easier for me to do good work, which means the clients are happier, I’m happier, and the chances that more of the work I want will come my way increases exponentially.
I have a similar attitude when it comes to my network of peers and contacts in the legal community. I associate with people I like, who I respect, and who share my general ethos. That way, when I refer potential clients to someone I trust, I know that client will be treated well. And when I get referrals from peers I know well, I have some assurance the potential client and I are right for each other.
Speaking of networks, one thing I’ve learned over the years is that having a network is a lot more than a pile of business cards from people I met at some conference and then never spoke to again. How, exactly, is that a network? To me, a network is an array of professional contacts I enjoy regularly staying in touch with (and I’m not talking about through Instagram or TikTok). Having real relationships with people helps you all grow your businesses, your knowledge and, most importantly, your joy in what you do.
And in the end, enjoying what you do is the single most important litmus test for business development, because if you’re happy in your work, you’re developing your business right.
December 4, 2024
The year is drawing to a close, which means I’m looking back on the good and the bad of 2024 and trying to focus, naturally, on the good. Among the good things of 2024 are three key realizations that have helped improve my legal practice. I’m sharing because I think they can be of value to anyone starting, growing, or managing a business.
One thing that really hit home this year is that when you’re a business owner, business problems are personal problems (and vice versa). This isn’t because a personal problem means that I’m making less money or that I take every frustrating or difficult situation personally.
I, like most everyone else, enjoy doing the things I’m good at and don’t like to do stuff that feels hard or stresses me out. But, as a business owner, just because something isn’t easy doesn’t mean I can avoid dealing with it. I still have to either slog through it or go back to bed and pull the covers up over my head (I never do that but hey, technically it’s an option).
There is, however, a third and, IMHO, better option: Understand why the task is hard and figure out how to make it less hard.
As I’ve talked about before, I used to dread posting to this blog because I was sure that some anonymous Internet troll was going to get offended by something I said, scold me for getting a fact wrong or get all huffy over a misplaced comma. I became so focused on not upsetting anyone or making mistakes that I ended up churning out some pretty pedestrian content. Worse, it took me FOREVER and a day to write anything because I obsessively examined and reexamined every damn word. Unsurprisingly, this did not make it easy to regularly post new material.
Acknowledging these feelings was a huge first step in overcoming them. It enabled me to look at my fears objectively and consider if there was any actual data to support their existence (surprise: there wasn’t!). Ultimately, addressing these personal fears and starting to make more regular and compelling blog posts turned out to have huge results for my business, as this blog has measurably helped attract new clients (for which I am extremely grateful).
The second big revelation is that it’s not only okay to be choosy when taking on clients, it’s critical for my sanity and my firm’s success. For a long time, I operated as if every potential client might be my last. Irrational, to be sure, but also pretty normal. As a result, I felt like I was endangering my business and financial future if I didn’t say yes to any matter that even vaguely fit into my area of expertise. That meant ending up saddled with work that wasn’t profitable or, worse, made me miserable because I either wasn’t interested in the subject or the client didn’t value my insights, knowledge or ideas. Perfect example: Have I litigated securities fraud issues? Sure. Could I do so again? Of course. Do I want to? No! Securities fraud cases are not something I enjoy, nor will they lead to more of the cases I thrive on. In other words, while taking on cases or clients that aren’t a good fit may put money into my pocket in the short term, they don’t result in work I can excel at and people I enjoy working with. That’s where I need to focus my attention. Now, I am way more selective, and while I know that turning down work sounds a little crazy if you’re just starting your own business, it’s been a game changer for me.
Which leads to my final big discovery of the year: By saying no to things that don’t serve my firm’s (and ultimately, my own) long-term interests, I have more time to focus on doing and getting work that I DO want. My time and energy are finite resources (this is really the BIG realization) and by using them more efficiently I’ve seen rapid, tangible results in the growth of my practice. I’m happier, my clients are happier, and my family are happier. And that’s ALL good, this year and for the years to come.
November 7, 2024
I talk a lot here about aspects of intellectual property law. It’s an area I find pretty fascinating because it has to do with how a society encourages people to create, and the law embodies beliefs about how to accomplish that. I also talk a lot about partnership disputes which, along with IP work, forms a big part of my practice.
Sometimes, when you put two good things together you get something great (Reese’s!). Other times, though, you just get a mess. (Melted chocolate in your pocket? OK, I’ll stop now.) Often, it’s my job to sort out the issues created when partnership disagreements intertwine with intellectual property issues — specifically, who owns a company’s IP when a partnership falls apart.
In such disputes, there are a few rules that usually apply. I’ve found these are often unknown to or misunderstood by the people involved in these scenarios. So let’s run through them.
- Just because two people or a larger group didn’t formally register a company doesn’t mean there isn’t a partnership. In New York (where I primarily practice) and in other states, courts can find that people entered into a partnership even if they never filed paperwork to create a business entity. There are a range of factors that can come into play here but, in general, courts will look at whether the parties shared the business’s profits and losses; jointly managed or controlled the business; contributed money to the business; and/or whether they intended to be partners. Why does this matter? Because, during the existence of a partnership, the partners owe each other fiduciary duties, meaning they must treat each other fairly and, importantly, no individual member of the company can claim the company’s property for herself.
- Thus, even if a partner registers a partnership’s trademark in her or his name, that trademark belongs to the partnership — not to her. For example, if a business operates under or sells a product with a name and/or logo, one of the members of the business can’t take ownership of that name or logo by individually obtaining a trademark registration for it. Nor can they exclude other members of the business from using the name or logo if the partnership breaks up.
- Copyright rules are different! Generally speaking, a copyright vests in the creator, not the company. This means that if partners (either individually or together) create a work that is copyrighted or copyrightable, the copyright goes to the creator or creators, not the business. Moreover, under copyright law, transferring a copyright requires a written document, so if any owner wants to transfer a copyrighted work from themselves to the business, they need to have a document that says so.
- On a related note, just because something is created by a partner under the auspices of the business doesn’t mean it’s a “work for hire” and thus belongs to the business from the moment of its creation. Something only becomes a work for hire in two situations: (a) if it’s prepared by an employee within the scope of his or her employment; or (b) if there’s a signed written agreement stating that the material is a work for hire.
- Finally, the idea for a business is usually not protectable because, in general, ideas are not protectable intellectual property (I know, that sounds counterintuitive). Copyright law protects the expression of an idea, not the idea itself. So if you say to a friend, “Hey, we should open a business making ice cream for cats,” and your friend goes out and starts up Kitty Kreameries, you’re not entitled to any ownership of it. You have to put in the work and actually do the thing, not just think of the thing.
No one starts a business with others expecting things to turn sour. But it happens a LOT. So the overall lesson here: If you’re entering into or already in a business with others, whether you’ve formally created it or not, be aware what belongs to you and what belongs to the business as a whole so you won’t be taken by surprise if it all comes crashing down someday.
