SWIFS 2018 Spring Symposium

On May 15, 2018, Raymond James hosted the Third Annual Southeastern Women in Financial Services (SWIFS) Spring Symposium, which over 70 women attended. SWIFS was honored to have Susan Blount (former General Counsel of Prudential Financial) inspire attendees with her “Power Up” Keynote Speech. The two CLE panels included a vibrant panel examining the gender gap in litigation and compliance and a panel on the ethical use of social media and regulatory insights from a FINRA Examination Manager. Below is a summary of the sessions in the event that you or your colleagues were unable to attend. Please let us know if you have specific questions about any of these sessions. 

Panel Highlights

Keynote Speaker Susan Blount – Power Up

Susan Blount, former General Counsel of Prudential Financial, delivered an insightful keynote leaving SWIFS attendees inspired to “Power Up” their own careers and leadership.

Examining the Gender Gap in Litigation and Compliance

The panel included moderator, Joelle Simms (Bressler, Amery, & Ross), Danielle Tarasen (Raymond James, SVP, International Supervision), Lorena Kern (Kern Consulting), Kathy Adams (Kathy Adams Dispute Resolution), Teresa Verges (University of Miami School of Law Investor Rights Clinic), and Dominque Heller (Wiand Guerra King).

The discussion began with a review of law firm statistics from ALM Intelligence, Where Do We Go From Here?: Big Law’s Struggle With Recruiting and Retaining Female Talent. Courtroom statistics show that women only make up 25.2 percent of all attorneys appearing in courtrooms and even then, only 24.9 percent of the time, serve as lead counsel. Even more, female representation tends to cluster around single party and simple cases.1

Statistics show that women are hired at close to the same percentage of men, but as career progression continues, women attrite at a much higher rate than men.2 The panel discussed various theories behind the female departure from financial services: (1) the pipeline theory, (2) toxic work culture, (3) work/life balance, and (4) children – to name a few.3 What are the top enablers for advancing women into leadership? Answer – successful mentoring from senior leaders. Statistics show that the number one piece to advancement to partnership for female associates is having a senior partner as an advocate – this above all other categories (such as having a book of clients or high billable hours) by far.4

The panel discussed what senior lawyers can do to help close the gap: (1) advocate for female lawyers both internally and externally, (2) give associates the opportunity to argue briefs, take a witness at trial, and take on more responsibility, and (3) push for sponsorship, not just mentorship. What can female associates do to help close the gap? Ask for more responsibility and for opportunity.5

Get the Most from Every Post – the Ethical Use of Social Media

The panel included Moderator Alise Johnson Henry (Bressler, Amery & Ross), AnnMarie Davis (Raymond James, VP and Associate GC, Employment Practice), Kaye Harwood (FINRA, Examiner Manager with Florida District Office), Patricia Flynn (INTECH Investment Management, SVP and CCO), and Julie Portera (Maynard Cooper).

The panel began with an overview of the use of social media and networking sites in adults, i.e., 72 percent of U.S. adults use social networking sites.6

The panel discussed obtaining social media posts during discovery in litigation, spoliation, and regulatory requirements to supervise social media sites. The Federal Stored Communications Act, 18 U.S.C. §§ 2701-11, applies to non-public electronic communications and notwithstanding the SCA, traditional rules of discovery do apply to social media, albeit at a heightened standard of judicial review. In determining whether social media is public or private information, courts have differed in their holdings.7 Importantly, parties requesting data from a social media provider cannot rely on a subpoena, but must also have consent.8 One efficient method to obtaining social media information is to request it directly from the other party through discovery requests and/or move to compel the party to consent to the social media provider producing the information. It should be noted that the Stored Communications Act prohibits third party civil discovery from social media sites unless the request falls into an exception, such as consent.

Ethical considerations to watch out for include accessing attorneys and other parties’ social media sites through proxies or accessing “private” information without voluntary disclosure or court order, and not engaging in any ex parte communications with an adversary, witness, or judge. Even more important are ethical considerations surrounding spoliation. One important case is Allied Concrete Co. v. Lester, 285 Va. 295 (2013) where a defendant “cleaned up” his social media page, per his lawyer’s advice, and during discovery claimed to not have a that social media page. The defendant was sanctioned $180,000, the lawyer was sanctioned $542,000, and an adverse inference was allowed for the missing social media page.9

On the regulatory front, FINRA requires firms to regulate and retain communications of registered principals, which includes the use of social media sites used for business purposes (personal use not regulated by FINRA). FINRA Regulatory Notice 17-18 provides guidance regarding the application of the FINRA rules governing communications. Firms have a duty to monitor associated persons’ chat room communications, use of social media for business purposes must be approved, and all records kept in accordance with the Books & Records requirements. Static communications (example, background and profile) must be approved prior to use by a registered principal and may be subject to a filing requirement and interactive communications (for example, a status update) may be supervised flexibly in accordance with the firm’s WSPs. For example, an initial blog posting would be considered a static communication requiring prior principal approval, but comments on a blog may be considered interaction and could be supervised flexibly by the firm. Firms should be cognizant that interactive communications can become static. Firms should also be careful with third-party websites, adopting or becoming “entangled” with the content.10

Best practices from the panel: (1) company ownership of systems, equipment, with no expectation of privacy; (2) restrict work-site access to social media on company-owned equipment; (3) prohibit employees from engaging in business-related social media communications not subject to company supervision and approval (establish controls); (4) prohibit revealing confidential, private information; (5) avoid sweeping prohibitions that may implicate Section 7 of the NLFA; (5) train employees on the policy (and acknowledgement of policy); (6) understand that social media is generally considered “advertising” and must comply with all relevant state laws; (7) establish systems to monitor third-party social media sites (be cognizant of “entanglement” and “adoption”); (8) ensure systems and technology are in place to comply with recordkeeping requirements; and (9) ensure company website has privacy policies and consents.

Own It by Sallie Krawcheck

Melissa Acayan (Raymond James, Compliance Counsel SARI Team) and Stefanie M. Wayco (Greenberg Traurig) led a lively and thought provoking discussion of Sallie Krawcheck’s book, Own It. Krawcheck’s book draws on her own experiences while working at large financial institutions and now as an entrepreneur starting a women’s online trading platform, Ellevest. While business has come a long way in closing gender gaps, there is still quite a distance to close yet. Krawcheck’s key message is change comes not from “acting like a man” or “having it all” or “not having it all,” but about embracing and investing in six qualities that Krawcheck believes women have which she says makes women irreplaceable at work:

  1. Women are sensitive to risk.
  2. Women are better at thinking about the big picture.
  3. Women are more relationship-oriented.
  4. Women think about the long term.
  5. Women are always learning.
  6. Women care about more than money.

Ever wonder why the office is so cold? Offices are set to colder temperatures to accommodate for men wearing suits (even three-piece wool suits) in the summer. This question elicited a discussion on implicit gender bias, of which both men and women are guilty.

Krawcheck writes that part of embracing the female qualities that make women integral to business is the relationship aspect and the humanistic touch. Krawcheck gave several examples, but one that stood out for this group was the story of the emergency phone call Krawcheck got from her daughter while on a very important conference call. She politely asked the call to hold for a moment because she had another call that she needed to take immediately. Upon re-joining the call, she apologized and explained when she took on her new role, she promised her children they could call her any time if they had an emergency and she would always answer. She explained that her six-year-old daughter could not find the pink nail polish. Laughter ensued. While a funny story, this really illuminates leading by example – acknowledging that we (men and women) have families, friends, and passions outside of the office, which make us better employees. These qualities should not be hidden whether you are male or female.

Krawcheck’s call to action – stop the perpetuation of Queen Bees sabotaging the way for other women in their careers and have those “courageous conversations” at your businesses and firms. Have a “funeral for diversity councils” that are in name only and embark on successful diversity programs from the board down that permeate the entire culture of the firm.

This GT Alert was prepared by Greenberg Traurig Associate Stefanie M. Wayco and Raymond James Associate General Counsel – Compliance and Co-Founder of SWIFS Erin Linehan


 

1 New York State Bar Association Commercial & Federal Litigation Section Task Force on Women’s Initiatives, If Not Now, Then When? Achieving Equality for Women Attorneys in the Courtroom and ADR, July 2017, available at https://www.nysba.org/WomensTaskForceReport/.

2 Mercer, When Women Thrive: Financial Services Perspective, Oct. 2016, available at http://www.gbaforwomen.org/when-women-thrive-financial-services-perspective/?wpdmdl=5950.

3 See, Erin Giglia & Laurie Rowen, Survey Results: Why Are Women Really Leaving Firms?, Orange County Lawyer Magazine, Mar. 2016, at 22, available at http://www.virtualonlineeditions.com/publication/index.php?i=291750&m=&l=&p=1&pre=&ver=html5#"{\"page\":1,\"issue_id\":291750 and see The Florida Bar, Results of the 2015 Survey on Women in the Legal Profession, Dec. 2015, available at http://www.floridabar.org/wp-content/uploads/2017/04/results-of-2015-survey.pdf.

4 See Ernst & Young LLP, Navigating Disruption Without Gender Diversity? Think Again, 2016, available at http://www.ey.com/Publication/vwLUAssets/EY-women-in-industry/$FILE/EY-women-in-industry/pdf and see Eryn M. Hughes, Shattering the Hire Ceiling: Why Disproportionately Few Women are Partners at Large Law Firms, College of Undergraduate Research Economic Journal, Mar. 18, 2017, available at http://repository.upenn.edu/cgi/viewcontent.cgi?refer=https://www.google.com/&httpsredir=I&article=1250&context=curej.

5 New York State Bar Association Commercial & Federal Litigation Section Task Force on Women’s Initiatives, If Not Now, Then When? Achieving Equality for Women Attorneys in the Courtroom and ADR, July 2017, available at https://www.nysba.org/WomensTaskForceReport/.

6 Pew Research Center; 8/13, 4/18.

7 See, Nucci v. Target Corp., 162 So. 3d 146 (Fla. Dist. Ct. App. 2015); Forman v. Henkin, 30 N.Y.3d 656 (2018); and Ehling v. Monmouth-Ocean Hospital Service, 961 F. Supp. 2d 659 (D.N.J. 2013).

8 See e.g., Negro v. Superior Court, 230 Cal. App. 4th 879 (Cal. Ct. App. 2014).

9 See also, Gatto v. United Airlines, Inc. et. al., No. 10-CV-1090-ES-SCM, 2013 WL 1285285 (D.N.J. 2013) (Plaintiff gave defense counsel his social media password to review data, the social media network sent to plaintiff a warning message that account was accessed by unfamiliar IP address, plaintiff feared being hacked and deactivated account, defendant entitled to spoliation inference).

10 For more information see, Regulatory Notice 10-06, Guidance on Blogs and Social Networking Web Sites (January 2010); Regulatory Notice 11-39, Social Media Web sites and the Use of Personal Devices for Business Communications (August 2011); Regulatory Notice 12-29, SEC Approves New Rules Governing Communications with the Public (June 2012); FINRA Rule 2210 Questions and Answers available at http://www.finra.org/industry/finra-rule-2210-questions-and-answers; and Regulatory Notice 17-18, Social Media and Digital Communications, Guidance on Social Networking Websites and Business Communications (April 2017).