Transcript

Talking Employment Law Success with Richard Simmons and Raheel Hayat

An Episode of CEB’s podcast, Golden State Lawyers

Raheel Hayat: Hi, I am CEB programs attorney Raheel Hayat. I am pleased to be hosting Talking Employment Law Success with Richard Simmons, an episode of CEB’s new podcast Golden State Lawyers. In this podcast, Richard Simmons of Sheppard Mullin discusses arguing before the California Supreme Court, how he accidentally got started working in employment law, shares some advice for California employers and more.

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Raheel Hayat: Today we are recording with Richard Simmons who is a partner in the labor and employment practice group of Sheppard Mullin in their Los Angeles office. Good afternoon Mr. Simmons.

Richard Simmons: Good afternoon. Thank you for having me here.

Raheel Hayat: It’s a pleasure to have you. Thank you for taking the time to speak to us on this podcast. So with that, I’m going to go ahead and begin. I want to start off by congratulating you on your recent California Supreme Court Win in Gerard v. Orange Coast Memorial Medical Center. And I just wanted to have you talk to little bit about the case and maybe mention a few changes that have come about in the labor and employment landscape because of that case.

Richard Simmons: Well, it’s a fascinating case. First of all the case was filed more than 10 years ago, and it was filed as a proposed class-action against a hospital and the case started off as a case that involves all the garden-variety claims you would see in typical wage and hour litigation. Meal period claims, rest period claims, off the clock work claims, claims for reimbursements for business expenses, paystub claims, final pay claims and a number of other. We were extremely fortunate in the case. Of course the client did everything right, as our clients often do, and we were successful in defeatubgfiling class certification before the original trial court judge, Judge Andler. And, after Judge Andler denied class certification, the plaintiffs were given a second opportunity to come back with a new plaintiff because the original plaintiff was found atypical and new lawyers, because the original lawyers were actually found inadequate. So they came back with two new plaintiffs and what was proposed as a new lawfirm and we defeated class certification a second time in front of Judge Stock in Orange County and we felt very very comfortable with that. Then the plaintiffs appealed and they narrowed their appeal so as to eliminate all the claims in the case that we had been successful on with the exception of one. They argued that their meal period claims should survive because they asserted that a provision in California law that allowed healthcare employees who worked long shifts was invalid. So they didn’t argue that the hospital itself violated the law, they said that the law was instead invalid and as a result they should be permitted to pursue their claims.

They were focused primarily on the difference between a statute and a provision in the California wage orders. The wage orders were more generous to healthcare employees, and they allowed healthcare employees working shifts more than 12 hours to waive one of their two meal periods. The plaintiffs argued that that provision of California law was invalid. We argued of course that it was entirely valid.

The case went up through the court system and back down again, and it actually involved a novel approach where after Court of Appeals had initially ruled against us, we were able to advocate for legislation repudiating the decision of a Court of Appeal, and that was unanimously passed by the Assembly and unanimously passed by the Senate, and after the Supreme Court saw what the legislature had done, it directed the case back to the Court of Appeal, and said “would you like to reconsider your original decision against the hospital, given the legislature’s view of this.” The Court of Appeal then reconsidered it and said “mea culpa, the court was wrong,” a very unusual thing, that the court itself had erred, and at this time it ruled in the favor of the hospital.

Lo and behold, while we thought the case would ended at that point, the plaintiffs then asked the California Supreme Court to grant review, and the Supreme Court granted their request for review and ultimately the case was heard on October 2 of 2018, and the Supreme Court unanimously ruled in favor of the hospital on December 10, 2018, concluding that the provisions of the wage order that provided special roles in the healthcare industry were in fact valid, and it gave employees the flexibility they wanted So that employees working long shifts, including shifts that occasionally exceed 12 hours could waive one of their two meal periods on a voluntary basis if they wanted to do so.

So it was a case that was good for employees, a case that was good for hospitals, and it was a case that was good for patients as well, so everybody was very happy about the case other than my opponents in the case itself who were less than happy, but justice prevailed, and it was a unanimous decision in favor of our client.

Raheel Hayat: Fascinating that the legislature got involved as well because you don’t hear about that too much. That’s interesting.

Richard Simmons: Unique. In my entire career, I’ve never had an opportunity to engineer a legislative solution that effectively provided us a path to the proper additional outcome.

Raheel Hayat: Great.

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Raheel Hayat: Richard Simmons’ Wage and Hour Manual for California Employers is an essential desk reference for every HR representative, payroll executive, labor relations consultant, and employment attorney in California. this right now because now available for the first time in OnLAW’s powerful format—conveniently searchable, indexed, and linked to cited primary law as part of the new CEB and Simmons Employment Library. Check it out at ceb.com/simmons.

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Raheel Hayat: So for young attorneys who are listening, what advice would you have for them if let’s say one day they find themselves are arguing before the Supreme Court?

Richard Simmons: Well the first thing I’d say is surround themselves with really talented people and draw upon your life lines. So at Sheppard Mullin, we obviously have a very talented group of appellate lawyers, and while I view myself as a substantive law expert, I am certainly not an appellate law expert, and I was able to utilize the expertise of a number of our appellate lawyers who actually provided me a picture of the Supreme Court in my mind, as one basketball commentator used to describe it, a “words eye picture.” So you’re looking at the Supreme Court, and it’s not like approaching a single judge, where you’re looking at one person or a Court of Appeal, where you’re looking at three. You’re actually looking at seven people on the Supreme Court, and that is your audience.

You will learn probably early on in the questioning who will be the most active questioners on the Supreme Court, but you obviously want to respond to their questions. You don’t want to finesse or dodge the questions. A good question, a fair question, deserves a fair answer and that is what I would encourage people to plan for. Also you owe it to yourself, you owe it to your client to know the subject of your case, and the law associated with that subject, better than anyone else in the courtroom. That should be your commitment; that should be your passion, and the rest will take care of itself.

Raheel Hayat:  Thank you. Great advice. So going back to the case itself, and I know you briefly mentioned the holding in the case, can you talk about that in a little more detail and maybe talk about the potential impact that the case can have in the state of California moving forward?

Richard Simmons: Sure. It gets a little technical because there are two things in play: one a statute and the other a regulation. In this case a statue is labor code 512. It states that an employee who works over 10 hours can waive one of the two meal periods employees are entitled to, but only if the employee works no more than 12 hours. Thus, under the statute, a person who works over 10 but no more than 12 can waive a meal period, but if you work over 12 hours you are ineligible for the waiver. In contrast, the regulation which is called a wage order approved by an agency called the industrial welfare commission, the IWC, and the IWC responded to a petition in the healthcare industry back in 1993 recognizing that the 12 hour limit doesn’t make sense for healthcare employees.

Why not? Because many employees work 12 hour shifts in healthcare, and if you start one minute early, and work 12 hours and a minute, that should not preclude you from having the flexibility to waive your meal if you want to. Likewise, if somebody works a 12 hour shift and stays five or 10 minutes late because the employee scheduled to replace them him or her, let’s say a registered nurse, doesn’t show up on time and you can’t abandon the patient, you have to protect the patient’s interests. Once again you’ve already agreed to waive one of your two meal periods. That waiver should not be invalidated because you happen to work one or a few minutes in excess of 12 hours.

Because of that the agency with specialized expertise designed to protect the health and welfare of employees made an exception for healthcare employees, so the 12 hour limit that’s contained in section 512 of the labor code is not reflected in the wage order, instead the way order allows people to work over 12 hours and still have the opportunity to waive one of the two meal periods in the healthcare industry only. The plaintiff lawyers argued that the wage order was invalid because it was inconsistent with the statute. We argued that both harmonious because that industrial welfare commission studied the meets of the healthcare industry and decided to create that exception with full knowledge of what it meant. It was a practical response to the needs of the healthcare industry.

Employees wanted it, hospitals wanted it, representatives of organized labor wanted it. We conveyed all of that to the California Supreme Court, and the Supreme Court recognized that everybody wanted it. It was consistent with the health and well-being of employees and patients and the scheduling needs of hospitals, and again the Supreme Court unanimously affirmed the validity of section 11D  of wage order five that the industrial welfare commission had adopted in 1993 and then readopted in the year 2000.

Raheel Hayat: Great; great. Thank you.

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Raheel Hayat: CEB is thrilled to welcome the authoritative work of Richard Simmons, a partner in the labor and employment practice group in Sheppard Mullin’s Los Angeles office, to CEB’s online offerings. Simmons Wage and Hour Manual for California Employers, an essential desktop reference for California employers and employment law attorneys, is a key part of the new CEB and Simmons Employment Law Library. Find out more by going to ceb.com/simmons.

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Raheel Hayat: I would like to now turn to your career path. For attorneys that are listening, or younger attorneys who are interested in going into labor and employment law practice, do you mind sharing how you got started in employment law? Richard Simmons: it was fortuitous for me, and it’s actually a funny story, because I went to law school in Berkeley and after I realized I could succeed and I was not going to flunk out, which was an amazement to me in some respects, I decided to look for some extracurricular activities, and the result of all that was I was elected after a period time, as the founding editor-in-chief of what at that time was called the Industrial Relations Law Journal at the Berkeley School of Law. It is now called the Berkeley Journal of Employment Law. And because I was the founding editor-in-chief who had no true understanding of employment law, I never the less was interviewed by large law firms and they perceive me as a next Messiah in the employment law arena [laughter] even though I knew nothing about the subject. And then when I ultimately agreed to accept the position with one large law firm, they asked me if I would start my first rotation in employment law, and I said I will do whatever I’m told, I intend to be a good soldier, and I thus became an employment lawyer for a rotation. Well, that rotation never changed.

And the reason is employment law is absolutely the most exciting and dynamic area in all substantive law areas in my view. It is an area that was absolutely matched with my personality, because if you want to bite people in the neck, you can go about doing that; if you want to be educational and advise people you can go about doing that. So it’s one of those rare sensitive areas where you can be adversarial if you choose to be, and litigate cases, or you can be a transactional advice lawyer if you choose to be, and advise people how to comply with the law. Either way, compliance is the basic foundational message that we as management employment lawyers have, and that’s one of the things I would share with an attorney who is trying to decide what area is most attractive and most appealing.

Raheel Hayat:  Great. Having said that, is there anything that still surprises you about this practice area?

Richard Simmons: Well it’s constantly evolving. When I started practicing law, which was quite some time ago, the big areas were Title VII employment discrimination, eventually the Americans with Disabilities Act was enacted, and it was primarily a civil rights area on one hand, and then there was the National Labor Relations Act and union work. Those were interesting, important and dynamic areas. But since then, we’ve seen a flood of new employment laws enacted over the years. During the Grey Davis administration alone between 1999 and 2003, he signed into law more than 150 workplace reform measures in California alone. Now that’s spellbinding when you think about it, and when you think about the magnitude of the California labor code and all that is in it, the labor code starts with section 1 and it expands to section 9104. There is no state like California. There is no state that regulates businesses like California does, and there’s an endless reservoir of imagination when it comes to the California legislature’s ability and willingness to regulate businesses. So it’s an area that is here to stay; it’s always evolving, it’s always growing. That is the most surprising dynamic, the fact that there is always more legislation on the horizon. I just wrote an article about legislation signed into law in 2018, and there were over 20 bills that directly impact workplace issues last year alone. So it’s a great area. It has not subsided in the many years that I’ve been practicing, and you get to deal with people issues, so it’s not just esoteric stuff. And I very much respect what people do who draft wills, but it’s not for me.

If you work in the employment law area you get to deal with real issues that affect people’s lives, and frankly as a management and employment lawyer, you can get more employers into compliance then you can buy suing employers. Because more people listen to you. So it’s a great area if you want to achieve compliance, if you want to do the right thing.

Raheel Hayat:  Considering it’s sort of an ever-evolving area of law, are there any groups or associations that you would recommend attorneys just starting out may consider joining, just to keep up with this changing landscape that you’re describing?

Richard Simmons: Well, there are a couple of things that you can do. The most obvious of course is to join the local bar associations, and of course most of them will have a labor law section, and that’s something that you can get involved in. And you can interact with people who are on both sides of the aisle, whether they represent management or plaintiffs, you can interact with people on both sides. So that’s an obvious and rewarding thing, something that that I haven’t had time to do in many many years, because I’m so busy doing other things.

I think another encouraging approach would be just to listen to your friends, because if you’re a recent law school grad, and you have other friends some of whom are not going to practice law, but will go into business or do other things with their degree, or other people you went to college or school with, or people you just happen to know that you may have gone to high school with, they’re going to be developing their own futures and careers, and they’ll become involved with businesses. Find out what businesses, and really learn. Don’t think that just because it’s popular to be the enemy of the business, that that’s the right thing. I would say align yourself with business interests and find out how to get people to comply with the law and make their businesses profitable and successful at the same time. And if you do that with people who are just building and growing their businesses you’ll realize that they have very productive frame of reference, and you will get to learn a lot that will enhance your career. And you can do good things, and it’s also relationship building.

Raheel Hayat:  That’s great advice.

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Raheel Hayat:  While Richard Simmons represents employers in employment law matters involving litigation throughout the country, the new CEB and Simmons Employment Law Library is one tool you’ll need whether you represent employers or employees in California. Whoever you represent, it is the most authoritative and comprehensive resource for employment law in California. See the breadth and scope of what the new library offers at ceb.com/simmons.

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Raheel Hayat:  OK great, since we have you here and you sort of have the unique perspective of practicing California law but also being on the national level, I was wondering if you can talk a little bit about your national practice, and maybe talk a little bit about some cases that you tend to believe are more multi-jurisdictional than others.

Richard Simmons: Well it’s a fascinating thing, because we start with the proposition that California does in fact have the most rigorous and comprehensive employment laws of any state in the country. There is no state that is a close rival when you look at the entire picture of employment laws. The litigation we see then in California is largely focused on enforcement of California law because there are because there are more rigorous rules, there are more traps for employers, and frankly the remedies available under California law are typically more lucrative for plaintiffs than are available under federal law, so litigating based on California law is very attractive in California. That’s not to say there’s not federal litigation too, but litigating based on California laws is more common.

When I’m asked to defend cases in other states or federal courts throughout the country, the focus there is typically on Federal law, and these are laws that California employers often are not concerned with to a great degree because they’re overshadowed by California laws. For example the minimum wage in a federal law is $7.25 an hour, in California and is now $12 an hour. People who litigate minimum wage claims will bring them under California law.

Likewise, the overtime rules in California are far more rigorous than the overtime rules under federal law, so when people are looking to sue in other states, they typically look at rules that we take for granted here, like exemption rules. The most common types of cases that I see in other states are either exemption claims, where it’s alleged that an employer has misclassified individuals as exempt where they are not exempt, because those claims are such that they will invite collective action as it is called under the Fair Labor Standards act or class actions under Rule 23, and off-the-clock work claims.

I would say that those are the most common types of claims we see elsewhere, but in California we have much different claims with a far larger plaintiff’s bar, by the way, that are very very sophisticated as a general matter in the wage and hour field. So of course, management lawyers have to be up to the challenge, and be prepared to deal with the California rule knowing that the risks in California are typically far greater than those that are available under federal law. Even the remedies available under federal law are typically a small fraction of what they would be under California law even when you have similar alleged violations.

Raheel Hayat:  Great. Thank you. I would now like to turn to some trending topics and take a macro approach to the labor and employment landscape, if you don’t mind. So starting out with minimum wage that you just mentioned, do you think a $15 minimum wage movement has legs nationwide?

Richard Simmons: There’s no doubt that it has legs. I have to say that this is a highly politically charged issue, and I often think that those behind that movement are in some respects shortsighted, but that’s a philosophical view. The fact is that originally when the first minimum-wage was proposed in the country, organized labor was opposed to a minimum wage because they advocated or espouse the view that a minimum wage would be a ceiling rather than a floor and thus history would teach us, organized labor at that time was opposed to the minimum wage for that reason. Now the “15 or bust”--or whatever you want to call it--movement is really supported by organize labor, it’s become a political issue, it plainly has gotten traction in California, we have a legislation in California that calls for increases in the minimum wage each year until it eventually will reach $15 an hour. I think there will be an effort to do that in other states in the country. It obviously has not succeeded on the federal level, because the fair labor standards act of minimum wage of $7.25 an hour has remain that for a number of years, and it would take a great deal for the federal minimum wage to be escalated or hiked to $15 an hour. I don’t see that occurring in immediate furniture, on the other hand I do believe advocates of the $15 minimum hour wage will go state by state and try to influence local government agencies, cities, counties, and each state to pass bills like that, and they’ve had success in some states it’s really not all states, and that will continue to be a state by state issue.

Raheel Hayat:  Very interesting. What top two or three pieces of advice would you give to people to California employers?

Richard Simmons: Employers?

Raheel Hayat:  Employers.

Richard Simmons: Well, the first thing you have to do is commit yourself to finding the right resources that will enable you to keep abreast of the rapidly changing laws, because as soon as you feel complacent that you have a sufficient understanding of the California laws, you will find out quickly that something has happened in the form of a judicial, regulatory, or legislative development that puts you in the back seat. Obviously because there are lawyers in California who will sue whenever there’s a change in the law focusing on the vulnerability of not being on top of that the change, you have to be concerned about that.

A perfect example is in front of us right now. In California, the minimum wage just went up on the state level to $12 an hour. Whenever the minimum wage goes up in California, seven things automatically change. It’s what I call in my book the derivative consequences of the minimum wage change. One of the seven things that changes automatically is the minimum level of salary that you that you must pay someone to be exempt. Because under Labor Code Section 515, minimum salary is a multiple of the minimum wage, so if the minimum wage is $12 an hour, the lowest amount an employee can be payed and qualify as an exempt executive administrator or professional employee is eight times the minimum wage, which is $960 a week, so if employers just knew that the minimum wage went up to $12 an hour January 1, 2019, that’s good, so they don’t pay anyone less than $12 an hour, but what employers don’t realize as the result of that minimum wage increase, the minimum salary they can pay people to be exempt went up to $960 a week then that’s a problem. That means litigation will be filed alleging that anyone paid even a dollar a week below the minimum level is not exempt. And that’s a real problem for employers.

So you have to be vigilant and you have to think about the big picture and what the consequences of all changes are in California. Obviously it’s important to have the benefit of attorneys, legal counsel who you have a relationship with, you can rely upon, and go out to dinner with your lawyers. Have them take you to a basketball game, maybe even a Lakers game, have them pay the cost of that dinner and ask them what to do and keep on top of the cutting-edge developments in the law.

Raheel Hayat:  Great, Great answer. Have you seen more sexual harassment claims since the #MeToo movement broke?

Richard Simmons: It’s actually fascinating, because I doubt there’s a management firm in the state of California or even in the nation that was not anticipating a large spike in the number of sexual-harassment cases actually being filed. Now in truth, of the 22 bills that I just summarized in the article that I just wrote about 2018 legislation, nine of them are what I would call #MeToo bills. So without a question, there is a significant proliferation in legislation dealing with sexual harassment, and a number of those bills deal with issues of training, a number of those bills deal with substantive law issues, including whether or not summary judgment is appropriate in sexual-harassment cases, what the severe and pervasive standard really means. There was a legislative repudiation of the Brooks vs. City of San Mateo case. There are all sorts of legislative and judicial developments, but I have not seen an overwhelming spike in the actual number of sexual harassment cases filed with the agencies or in court.

We still anticipate that might occur, perhaps will occur, because the legislation is aimed at making it easier to prevail in those cases, but it has not overwhelmed our practice. I will say that one of the bills that is most interesting is the bill that amended the defamation standards in California law and codified principles that individuals who make sexual-harassment claims are privileged with respect to those statements, and employers who conduct sexual-harassment investigations and interview employees also have privileges that attach both to the employers doing the investigations into the employees who act as witnesses, so that legislation is significant. I think when it all seeps in, it will result in an increase in claims, but it is not as though that is dominating the landscape right now. I would say that the most common types of claims far and away in California today and a year ago today, are wage and hour claims. There are an average of 2 to 10 wage and hour class actions filed every day in California, and they certainly dominate the landscape in terms of the volume of litigation.

Raheel Hayat:  Speaking on litigation trends, I was wondering what Private Attorneys General Act or PAGA litigation trends are you seeing recently?

Richard Simmons: First of all, for those of you who are not familiar with PAGA, let me tell you a little bit about it. I mentioned earlier coincidentally that Grey Davis signed over 150 workplace reform measures while in office between 1999 and 2003 after the recall election of October 2, 2003, the first legislation he signed into law was AB 60, which was called the Eight-Hour Day Restoration and Workplace Flexibility Act of 1999. It was a wage and hour statute that created the first statutory rules on meal periods, new exemption standards, new alternative work schedule rules, and like. AB 60 was the first picture of legislation that he signed in July of 1999. The last piece of legislation he signed was PAGA. And that was SP 796, and he signed that on October 12, 2003, five days after the recall election, and it was the last piece of legislation he signed into law.

PAGA stands for a Private Attorneys General Act of 2004. It took affect January 1, 2004. It did not add a single new substantive provision to the wage and hour field. Didn’t create a new meal period obligation, didn’t create a new rest period obligation, didn’t change the overtime rules, didn’t change the paystub rules, but it added a new enforcement scheme. It said that now in California, if an employee sues as a “aggrieved employee,” that person can bring claims on behalf of other allegedly aggrieved employees, and there’s a brand new case called Huff v. Securitas that says one employee who is aggrieved with respect to one provision of the labor code can sue on behalf of other employees who are allegedly aggrieved with respect to entirely different provisions of the labor code that did not impact the plaintiff at all. That is a broad sweeping opinion. The trends in PAGA cases are clear. We’re seeing more and more PAGA cases are being filed. I don’t have any statistical information to share with you, but when PAGA was first enacted, we expected the wheels to come off the wagon because PAGA claims need not be certified under section 382 of the Code of Civil Procedure. An aggrieved employee can bring a representative action under PAGA without having to show no numerosity, commonality, superiority, typicality, or any other class action requirements, so they are easier cases to bring.

So what’s the downside? The downside to that point as the training is that there’s only a one-year statute limitations under PAGA, whereas in a class claim, a person can typically go back as far as four years under Section 17,200 of the Business and Professions Code. The trend is really an increase in the number of PAGA claims. It is very important to know when starting to develop your PAGA expertise that you should not simply look at the formulas that are potentially available under PAGA when it comes to evaluating exposure in the case, because PAGA states that an employee can seek to recover $100 per employee per pay period for an initial violation, and $200 per employee per pay period for a subsequent violation. However what often is overlooked is the fact that a superior court has discretion to lower the amount of penalties without regard to the formula itself, if it would otherwise be arbitrary, unfair , confiscatory or inappropriate to award the full amount authorized under the statute.

Employers have to understand that, plaintiff lawyers have to understand that. We have a brand new case called Carrington vs. Starbucks where a Court of Appeal affirmed a PAGA award that was a very small fraction of the amount that could’ve been calculated under the formulaic approach that the plaintiff lawyer sought. So be mindful of that. PAGA is a law that employers absolutely detest. They believe it is unnecessary and should be repealed, and it’s a law that plaintiff lawyers covet. And it is likely to be around for a very very long time.

Raheel Hayat:  Great. Sort of keeping with the legislative trends, are there any new laws that were in active this year, or I suppose in 2018, that you think will have a big impact on the California workplace?

Richard Simmons: As I mentioned earlier, I have written about 22 legislative bills that were signed into law in 2018 that took effect on January 1,2000 2019. Nine of those measures that with #MeToo issues and sexual harassment. They are all important, and they are easy to track down and to read about. I would say other bills that are of interest have received less attention. Certainly the bill that amends Section 1542 of the Civil Code, the statute that is typically reproduced in releases and settlement agreements, is one that people should pay attention to. The legislation that requires clients to consent to certain disclosures and practices in mediation this is one that should be noted.

Certainly the legislation that reduced the training, the number of employees you must have to be subject to the sexual harassment training mandate, from 50 employees down to five employees and that requires training not only a supervisors for two hours but also nonsupervisory employees for one hour, is really important. And that legislation also requires that seasonal and temporary employees be trained. That’s very important to pay attention to. There’s also legislation that invites, without requiring, bystander training, which is a novel concept new to California law this year, those are some of the bills that I think warrant attention.

Raheel Hayat: And before we let you go, we’re running out of time, Mr. Simmons, just one last question. Do you enjoy giving media interviews? How do you prepare for those what tips do you have for attorneys who find themselves being interviewed in the media?

Richard Simmons: I do enjoy talking to the media, but you have to realize that when you talk to the media, you have to give them everything, and they get to choose whether to use excerpts from what you say, or all of what you say, and sometimes they will even use it in a context that you would thank misrepresents what you have said. So you must be careful. And choose your words carefully with the understanding that they can be used in some cases out of context.

What is sometimes helpful is to understand that and to prepare written responses in advance to media inquiries, which is what I have sometimes said. So if the media is really anxious to interview you about a case, or to interview a client about the case, you might want to ask them to put their questions in writing so you can answer in writing by providing the question and the answer in that context. And that, I think, gives them far less freedom to use your words out of context or in a way that you did not want.

But my suggestion is to always put your client’s interests ahead of your own, don’t look at every opportunity to interview with the media as a good opportunity to you to promote your own career. Ask yourself if the client wants you to comment at all; many clients do not want to comment, and if that’s your client’s preference then that is your obligation to do what is consistent with your client’s best interests, and sometimes that’s no comment. Whereas you see a number of attorneys who will find any microphone in the city that they’re visiting, that’s really not an approach that is best for your client, even though you may perceive it as helpful for your business model. So that’s my suggestion.

Raheel Hayat:  Since we’re out of time, I’m going to end it there. I just wanted to say thank you so much, Mr. Simmons. As a young attorney and a fellow Lakers fan, I appreciate the time and I hope I can talk with you some more in the near future. Thank you.

Richard Simmons: Well thank you very much, I appreciate it.

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Recorded February 19, 2019 in CEB Studios, Oakland, California.