Ogletree Lawyer Works His Magic for Health-Care Clients

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By Gayle Cinquegrani

Employment litigator Robert Niccolini works magic in the courtroom as well as on the stage. That’s because he decompresses from his busy practice at Ogletree, Deakins, Nash, Smoak & Stewart by doing magic tricks.

The magic hobby “helps keep me sane,” he quips, even though he enjoys employment law because the cases are interesting from both a factual and a legal standpoint. The legal issues are compelling enough to yield two to four U.S. Supreme Court decisions a year, “so it engages you intellectually,” while at the same time, the facts of every case “are different and fascinating” and turn every case into “a new soap opera,” he said.

Niccolini, who works in Washington and co-chairs Ogletree’s health-care practice group, said about 65 percent of his clients are in the health-care industry. He identified leaves of absence as “a very, very thorny issue” for them. “Employers really struggle” to reconcile the Family and Medical Leave Act, the Americans with Disabilities Act, and state and local leave laws.

He recently won an FMLA case for a client sued by an employee who got a new work schedule when she returned from her medical leave. The court found no FMLA violation because Niccolini’s client, a trauma center, had a legitimate business reason for moving all its ultrasound technicians to rotating shifts so it could provide round-the-clock coverage. The court also concluded the schedule change was planned before the worker requested leave.

Whistle-Blower Cases

Many whistle-blower cases come from the health-care industry, Niccolini said, so “you have to recognize when a garden-variety employment lawsuit is transforming into something larger.” Disgruntled health-care employees often claim their employers inflated medical billings for government-funded programs, which can implicate complicated Medicare or Medicaid issues, he said.

Since he became a lawyer in 1993, “the pace of practice has changed tremendously,” Niccolini said. “It used to be you were kind of cut off” while traveling, but now “our ability to work on mobile platforms has completely transformed things.” He predicts lawyers eventually will use Skype or a similar platform instead of traveling to meet with clients and witnesses. He said “the real 21st century problem” is “information overload.”

Niccolini, who describes himself as “a very middle-of-the-road technology adopter,” serves on the Bloomberg Law Labor and Employment Technology and Innovation Board. The board’s goal is to provide feedback that facilitates the development of products and workflow tools for labor and employment lawyers. He said he appreciates research tools that deal with both “substantive legal areas and industry-specific knowledge.”

Niccolini estimates he’s handled 25 jury trials so far, and he advises young lawyers “to find opportunities to get into court, to do things hands-on.” He said, “It’s a real challenge now because clients want attorneys who already have the experience” and rarely agree to pay for multiple lawyers to attend court as second or third chairs. To deal with this dilemma, Ogletree has instituted “training hours” that allow associates to accompany seasoned lawyers to hearings or depositions. The firm counts the training hours toward associates’ billable hour requirements even though it doesn’t bill clients for them.

Niccolini’s interest in a legal career grew out of his involvement with debate clubs in high school and college. He attended Vanderbilt University for both undergraduate and law school and worked as a law clerk at the Paperworkers International Union in Nashville, Tenn. That job sparked his interest in labor and employment law.

Childhood Influences

The lawyer said the seed of his interest in labor and employment issues was planted during childhood. He grew up near Detroit, and his paternal grandfather was an autoworker at Ford and a shop steward for the United Auto Workers. His maternal grandfather owned several bakeries that had labor problems. “When my grandfathers got together, the sparks flew,” he recalled. “They loved each other and got along great, but they didn’t agree on one political thing.”

Niccolini belongs to the American Bar Association’s labor and employment section and serves on the board of directors of the American Health Lawyers Association. He’s also on his church’s board of trustees and building committee.

Another affiliation, the Society of American Magicians, shows the lawyer’s lighter side. Niccolini is the president of the Columbia Conjurors, a local chapter of SAM, and he occasionally incorporates a magic trick into his professional presentations. He said he once did a magic trick at an AHLA conference where “something went up in flames” and “freaked out” one of the other panelists. Niccolini also has performed his magic act for hospitals and children’s groups. His favorite trick is his three-card monte routine.

Most of Niccolini’s travel has been to legal conferences, but his family took several trips to Disney World when his three children—now ages 15 to 21—were young, and he enjoys the Outer Banks in North Carolina. His favorite movies are “The Godfather” and “Shawshank Redemption.”

To contact the reporter on this story: Gayle Cinquegrani in Washington at gcinquegrani@bna.com

To contact the editor responsible for this story: Tony Harris at tharris@bna.com

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