Q&A: HowardCole:

In Business Las Vegas, August 3rd, 2007

Question: Tell me about the firm.

Answer: Lewis and Roca is a multijurisdictional law firm, currently with over 200 lawyers. We have the main office in Phoenix ; also a Tuscon office; Albuquerque, N.M. ; Reno and Las Vegas .

As you may have heard we just enjoyed a lot of growth here in Nevada with our merger with Beckley Singleton, which is a well-established firm with roots going back about 45 years, I think. And with our combined talents and manpower we hope to take better care of our clients. I think we'll have about 57 lawyers total (in Las Vegas ), which puts us about No. 2 in the state, which is a big jump for us and one that we're very excited about.

What is your role in the firm?

My role in the firm goes back only a few months at this point. I joined the firm April 16. I had been practicing at my prior law firm, which was the biggest law firm in Nevada , for 14 years and this was a great opportunity for me. They seemed interested in bringing me on board and I was obviously interested in joining their ranks.

I'm a partner here. I work in the labor and employment area with two of the associates. We're bringing over a couple of people from Beckley Singleton who also practice labor and employment law, and we hope to substantially grow the practice.

We seek big opportunities, and hopefully over the next couple, three years we'll add some depth and talent and expand our horizons a little bit.

Who do you primarily represent?

We're strictly management side, I don't do any plaintiff-side work, meaning that on the employment side, all I do is defend the companies from lawsuits, whether it be discrimination, unlawful termination, sexual harassment, and the like.

I will also represent one company against another company for violation of restrictive covenants where they try to hire away one of our employees or defend my client if we're alleged to have breached someone else's obligations. But that's on the employment side.

On the labor side, it's a very clear delineation. You either represent labor organization, unions, or you represent management. I represent management.

You previously worked at Lionel Sawyer & Collins. Why did you move to Lewis and Roca?

I was quoted in a recent periodical saying that nothing is as certain in life as change itself. And I think that this was just a combination of their need for somebody like me. It's been reported that the Phoenix office lost six or seven of their people when they decided to form a new national boutique labor and employment firm, which made them start looking around for somebody with some experience.

I certainly qualified, as somebody with the 28 years of experience I bring that to the table. For me it was an exciting opportunity to grow this practice. I won't say anything bad against Lionel Sawyer & Collins. It's an old, established firm here. It's been around for 40 years now. I think they have some very talented attorneys. Sam Lionel is a great gentleman. If you've never met him, he's a wonderful guy. But for me, frankly, the stars aligned and it was time for me to move on.

What first drew you to Nevada ?

The truth of the matter is I had had occasion to start working in Nevada as early as 1981 or 1982, when I was prosecuting cases for the federal government. The agency I worked for had jurisdiction over Los Angeles , up the coast in California and also had Clark County. So I started coming in and out.

I was single, and they used to send the single people out to Nevada to prosecute the cases. So I had contact with this city when it was a bustling metropolis with 350,000 people. And so I was here to see the four, five-fold growth, the explosive growth of Clark County.

I had had a previous opportunity to move here and frankly the timing wasn't right at that time. I was engaged to be married and it wasn't a good time.

I was sitting at my desk at the law firm I was working at in Los Angeles when the phone rang. Unsuspectingly, I picked up the phone and I would not have foreseen it, but I came here for a job opportunity. I was offered a position at Lionel Sawyer & Collins.

Three of the partners had decided, for whatever reason, to go off on their own and it created an opportunity for me there. And life is opportunity and I came in.

I'd been up almost the whole night before (my interview) negotiating a collective-bargaining agreement, maybe got an hour, hour-and-a-half of sleep. I was not at the top of my game. I came in and thought, "Well if I can walk and chew gum at the same time, it's a first look, I'll spend an hour or two with them."

Ten hours later the managing partner of the firm drives me back to the airport, I'm barely able to connect a noun and a verb and in whatever infinite wisdom that they had, they decided, "You're the one." They offered me a job and that's what led me to take a job in Nevada .

But I have to say that having been born and raised in L.A. , I'm really happy here. I would not necessarily have forseen how well this worked out, but work-wise and personally, it's a good place to raise a family. We're happy here and Nevada is where we're going to stay.

There seem to be more and more high-level attorneys moving between firms these days. Why is that?

I don't think there's any one reason. ... People take advantage of opportunities and people make decisions for differing reasons.

When I was at Lionel Sawyer & Collins, several partners preceded me and left for their own reasons. There has been, and I think the biggest reason, frankly, is the quantum shift in the legal market here in Nevada as a whole. Certainly here in Clark County. And that has been evidenced by a lot of law firms coming in and parachuting into town.

The first group of law firms that did thought that they had a better mouse trap, that on name value alone they could hang out the shingle and people would beat a path to their door. They arrived here with much fanfare and quietly left with their tails between their legs.

That's just not how the Las Vegas legal market works. It's relationship based, and the firms that came in with the second wave and tried to establish a beachhead here have done so successfully, whether it be this firm Lewis and Roca, whether it has been Snell & Wilmer, the growth experienced now by Fenmore Craig, Holland & Hart is in town, and on and on.

You go out and look for people who are a good fit, have good experience, good skill sets, having portables as it's said in the trade, that you're able to move from one place to another and bring your clients one place to another to the new shop, that's certainly a big help.

That doesn't explain all of it though. I think some of my partners that left, left for other reasons, too.

One of my partners who left had been with that firm for 31 years and I think that part of his decision was that he had just had enough of the big firm experience — big firm by Nevada standards.

One of my other partners, with a specialty in estate planning and probate litigation, decided that after 25 to 30 years of experience he had the best set of associates that he had ever had working with him and decided to go off and hang out their own shingle and establish an estate planning, trust and probate litigation boutique.

So one size doesn't fit all, but I think the best answer is once Clark County hit 1 million people the red flag goes out. It becomes a target for everybody else. We're big enough now it's not just a one-horse town thing. Not that gaming is one horse, it's a darn big horse if it's a horse, but we're big enough now to attract people from other areas and my suspicion is — and time will tell — the time of the one-state law firm is beginning to pass.

Our clients want to be serviced in more than one jurisdiction. They know the lawyers in Nevada , but they've got business interests in Arizona or business interests in New Mexico .

What do you think of the Boyd School of law and its contribution to the Nevada legal community?

It goes hand in hand with the growth of the state. ... For a while there's a certain charm about everybody coming in and practicing law and coming in from other jurisdictions. (Even if) you were born and raised here, you still had to go out of state to go to law school.

You reach a certain size and, whether it was private or affiliated with the university system, they needed to have an in-state law firm.

I will tell you that people I knew from my previous law firm, the law firm community itself is getting together and strongly supporting the Boyd School of Law.

Everything the Boyd School of Law has done has been the template of how to do it, and how to do it right. It certainly didn't hurt that Mr. Boyd and others endowed the school with resources that other schools could only dream about. But through the administration of the school they sort of set the record, as I understand it, at how quickly they were reviewed and accredited by the ABA (American Bar Association).

In terms of going out and getting the best talent, the best professors, setting up the school, building their building, I think that they are not only the template but they have the admiration countrywide with regard to starting from scratch and building yourself a very good law school.

Is it going to take them a few years to really get to where they aim to? Of course it will. They're not going to be in the top 25 law schools in the nation for a while and you wouldn't expect them to. But to be in the tiers they currently are as quickly as they are, the law school professorship, the talent they are getting from around the country and the number of applications they are getting, there were any number of places where they could have potentially stumbled and they've done it right.

I'd like them to continue to incrementally move up the rankings, in terms of being able to churn out the best legal talent they possibly can. And they have the unique opportunity at the law school, given the state and the people who teach at the school.

The best gaming lawyers in the country are here in Las Vegas and in Reno . Those are the people who are doing one term or seminars or are teaching at the Boyd School of Law. What better way to learn, than from the people who literally wrote the books on gaming law?

And we can do that better than anybody else. Gaming lawyers are hard to come by and we can train the best gaming lawyers in the country and I'd like to see them continue to do that.

What are your future goals now?

Well, I'm going to keep doing this.

One of the reasons, one of the things I first talked about when I first joined this firm, is that I'm going to keep doing this for a number of years. How many jobs is it, that every day is different, every day you're excited, every day is a challenge, every day you feel passionate about?

If I didn't feel that way, I'd go do something else. And a lot of people I went to law school with are doing other things. Because it's great training for business and other professions. You learn about business law and you learn about a number of other things you could do to make a living.

But I like practicing law so my future goals in the longer term are to keep on doing it. I've been doing it for 28 years. I think I'm pretty good at what I do at this point. My clients seem to respect the work that I do for them and stick with me. We take good care of them.

There has been a lot of talk recently about merit-based selection of judges versus election. Where do you stand on the issue?

I think you have to step back from the debate and after you've looked at the scene from afar, that will hopefully impart some wisdom about what we should do.

On the federal level the selection of our federal judges is extremely different than what we do on a local basis. ... Not everybody is vested with the wisdom of Solomon, but the federal court system does its best to review candidates apart from the politics of who gets nominated.

And then we have the state court judge system where you can't drive down the street without seeing somebody's billboard on a wooden sign that's left standing six months after the election, that nobody bothers to pick up.

It's an embarrassment and just grabbing at an alternative, saying we can do something different. ... Certainly we can do things better. And frankly whether it be a nomination, review, vetting and approval system, that would probably serve us better than we are currently served.

The U.S. Senate has been unable to come to a consensus on immigration reform, a high priority for many businesspeople in Nevada . What will be the consequences if politicians cannot overcome their differences?

I appreciate the wording of your question, but I question the word "if." I think there's a consensus out of Washington , frankly, that it's just not going to happen, that this is now a post-election-cycle issue.

Do most people agree that something needs to be done to deal with the immigration issues in this country? I think that if you ask the question that way, people would step up and say absolutely, something needs to be done. The question is what needs to be done.

Our president could not get the members of his own party to go along with him with regard to the consensus or accommodation that was worked out in Washington between the president and the Democrats. They had immigration number issues, they had amnesty issues, they had legalization issues, they had border control issues. And, adding a completely different slant into this, I don't think I've heard anybody talk about (the bombings) that recently happened in London , that you had immigration into London , and some of the people who immigrated into London had bad intentions. There's that level of concern with homeland security and the numbers of people, and where they are coming from and the like.

I don't think there is any question that it is a dead issue in Washington right now. The advice that we give to clients and frankly what we can look forward to is continued confusion for two years.

If you ask people to weigh in on their thoughts they are going to be all across the board. ... I don't think there's a better target issue that we can point to than immigration that shows you how difficult it will be two years hence, after the next election, for the parties to come together and reach some kind of compromise as to what needs to happen. Absolutely something needs to be done.

The issue now is we currently have somewhere around 33 to 45 million Americans who are not covered by health insurance, and how many years after the initial attempts in Washington to have full coverage for everybody. What's going to happen with immigration? I suspect it will be a political morass when they readdress it in 2009.

How do employer rights and worker rights balance in Nevada today? We've asked labor representatives in past interviews and we want to get your perspective.

I suspect what the unions are first addressing is what they refer to as the Employee Free Choice initiative that they're trying to push through Congress. (It is) one of the worst- named initiatives I can remember. It has nothing to do with employee free choice.

Again it's a matter of perspective and a matter of stepping back. ... If you say something often enough, say something loud enough, people begin to believe it without really understanding the issue.

The unions say they don't consider the election process to be fair, that inevitably there is employer coercion and intimidation and the like. Say it often enough, say it loud enough, people begin to believe it.

This is not something new. This goes back six decades. Section 7, Rights of Employees under the National Labor Relations Act provides not unions, not employers, it provides fundamental guaranteed rights to employees. They have the right to choose. Not unions, not employers — employees have the right to choose.

What could be more fundamental than a secret-ballot election voted on by the employees themselves, giving them the right to choose their own destiny? Nobody is going to know how they vote. They go into a booth, there's a curtain in the booth. They vote yes or no, fold it up, put it into the box, don't sign their name and then the ballots are counted.

Unions will say — and a lot of the hotels have agreed — we'll give you a majority of the cards signed and that's sufficient evidence that we represent a majority of the employees in the bargaining unit.

Our response is that is complete and utter nonsense. Because you have no idea under what circumstances those cards were signed. It could have been that a full and knowing appreciation by the person who signed it and said, "Yes, I want a union." It could also be that if you want a free hot dog and beer, please sign my card.

The employer never has the opportunity with the Employee Free Choice Act, to advise employees with information they should know. Let them know how long it's going to take to negotiate a collective bargaining agreement. Let them know that nothing puts a gun to the employer's head and makes them agree to anything. Or what the potential impact ... of a strike is. Most people live paycheck to paycheck and if you go out on strike, that paycheck stops.

Give both sides a right to get the minds and hearts and ultimately the vote of the employee. And if the employees decide to vote for unionization, so be it. If they decide to vote against unionization, that's fine, too. But to call it the Employee Free Choice Act, there is no employee choice in that. They don't get to vote and I think that it's an abomination.

Is there one side that is more powerful than the other?

It goes back and forth. And part of that is the function of which political party is in power in Washington, D.C. It has little to do with Las Vegas itself, which is more unionized than most communities. But as much a function of what takes place in Washington political parties.

Even though I'm on the management side — rest in peace I hope he's not turning over in his grave — my father was vice president of a labor organization. And he lived through the days of very early organization efforts in the '30s, where the employers had the police on their side — not necessarily the days of the Pullman strikes, but analogous to that the employers could hold sway. Because they could try to bust unions and get the police to knock a few heads around and the like.

That's history at this point. Unions themselves, there are hundreds of thousands of members and millions of dollars contributed to presidential elections and state elections and the like to get their candidates in.

Both sides tend to be big. And (the power dynamic) changes, there's an ebb and flow. Historically in this town there has been a very good balance. As evidenced by the 2002 to 2007 collective bargaining agreement that was negotiated between the culinary workers union, now Unite Here, and the Strip casinos one of which has now been negotiated and they're now negotiating with another entity.

The town does well and that provides a great opportunity for a lot of people that benefit from it, including the employees. So it's about 24 years ago the last time the Culinary Workers union went down on strike. If the Strip hotels are doing well, the downtown hotels are doing better, the employees are doing better. And you can make a living in this state. ... If you work hard and both people work, you can buy a house in this state, it works to everybody's advantage.

What major factors do employers need to consider to protect themselves from employee lawsuits?

Can I have your job where I just get to ask the question and then someone else gets to talk five or ten minutes?

It really starts, honestly, before your employees are hired. We do a lot of preventative work to keep our clients, having nothing to do with unionization, having everything to do with keeping themselves in compliance with the mandates of the law, both state and federal.

It starts with the application process. We review their applications as to whether they are asking lawful questions or unlawful questions: "Are you able to perform the essential functions of the job with or without reasonable accommodation." It's a nice and proper way and lawful way of asking in compliance with the ADA, whether you can perform the job or not.

You go through the application, the employee handbook, the training of the employees, making sure all the policies and procedures are in compliance with the law.

These days, with the growth of employee lawsuits, and I've heard one estimate that about 20 percent of cases being filed in Federal Court are employee- or labor-related cases. And to avoid charges of discrimination and avoid unfair labor practices charges or any of the other available means that an employee can bring charges against the employer.

We try to make sure they're compliant with the law. Inevitably somebody will not see it through your perspective and feel that their rights have been violated and that you have done them wrong or whatever, but we work with our clients on an ongoing consultative basis, designing programs.

We keep them out of trouble by making sure they are in compliance with the law. And even so, somebody may bring a charge and not see it the same way the employer does.

I was just reviewing a case today where somebody brought a charge of discrimination and ultimately the reason for the termination, from the employer's perspective, was because of violence on the job. He threatened to kill everybody. He was not having a good day. It was his second violation under the conduct standards within a one-month period.

Killing everybody, I think, qualifies as a problem. And they terminated him.

Of course, he brought a charge of discrimination saying "you're discriminating against me" and the like and we felt we did what was necessary.

But we had rules and regulations and guidelines and policies guarding the conduct of the employees, we have to provide a safe and healthy working environment for everybody. Threatening to kill everybody was just not a good thing. But he brought charges of discrimination and he has a God-given right to sue in this country. You like to think in the old days when somebody messed up, they hitched up their britches and said "I'm going to do better on my next job." These days I feel like people say "you violated my rights, you done me wrong, I'm going to sue you."

It's been good for business, but we try to keep our clients out of trouble at the same time.

Should all business keep an employment lawyer on retainer?

My perspective is obviously a little bit jaded on this. Should they keep somebody like me around?

Quite frankly, the cost of a lawsuit, whether it be a discrimination lawsuit, even if you're covered by what's called EPLI insurance these days, the cost of a lawsuit, the distraction of a lawsuit is so onerous that if you just had the opportunity to pick up the phone and call your lawyer and say, "Let me review something with you. I want to terminate somebody and here's the underlying reason why. Can I do it or can I consider something else? Or am I doing something and is it in compliance with the law?" and the like. I'm not sure I agree that you have to have someone on retainer, but a relationship, yes.

Because anybody with 15 or more employees is going to be covered by a lot of the federal statutes. Even under 15 employees you're going to be impacted by state COBRA and the like. You're going to have to be covered for worker's compensation and frankly some of these laws are pretty complex. And just being able to pick up the phone and make sure and just take the stress out of it.

I think it's advisable to develop a relationship. Retainers? Not necessarily so, but having a relationship when things come up that I can bounce things off of.

You are also involved in charitable work. In what ways can lawyers uniquely contribute to their community or to charities?

I've done pro bono charitable work, a substantial amount of it, primarily for two organizations here in town. Trying to get the fledgling Las Vegas Philharmonic off the ground several years ago, I worked with them for at least five years and devoted a lot of time and effort for them. And on an ongoing basis I work with the Nathan Adelson Hospice.

Frankly, if I had more time, I'd probably pick another organization having to do with kids or something and give them some of my time and effort.

There's no mandate under the bar that we have to give something back. But we have a lot of blessings in the legal profession.

We make a pretty good living, we enjoy what we do, I think, as a whole, and to give something back to the community, to those in need, I wish some of my clients were as appreciative as the charitable organizations that you end up giving work to.

It just makes you feel good. They don't have to pay me, they make me feel good. And on that level alone, I would heartily encourage people to do it. Every experience I've had donating my time to a worthy cause has paid me back more than the time and effort that I've put into it.

Do I have an obligation? My personal feeling is yes. But I don't think it's carved in stone anywhere.