While the nation as a whole addresses a surge in opioid addiction, the Portland-metro construction industry is not. Largely, industry professionals are less concerned about abuse of opioids than illegal drugs or alcohol.

“It’s not been a topic that we are focused on,” said Mike Salsgiver, executive director of Associated General Contractors’ Oregon-Columbia chapter. “We are focused on safety generally and the health and welfare of our members. Opioid use is of national interest, but it is not more of an issue for the construction industry than any other part of society.”

Phone messages were left with more than a dozen local construction companies in an effort to learn more about their approaches to the issue. Representatives of only two replied to discuss pain management policies or opioid use.

“It’s just not something that is a topic,” said Dan Mehls, vice president and general manager of Mortenson Construction‘s Portland office. “This is the first time I have been in a significant discussion about (opioid use). Companies don’t see it as their issue. It’s seen more as an individual issue.”

While the percentage of money spent on opioids by insurers of construction companies has remained relatively stable, it has been higher than the nation at large, according to a report by CNA Financial Corp. It studied nationwide claim analytics related to medical liability and workers’ compensation between 2009 and 2013. According to CNA Financial’s report from 2015, spending on prescription opioids accounted for 20 percent of medication claims by the construction industry. That was consistently 5 to 10 percent higher than the average spent by other industries recognized by CNA Financial.

In general, construction companies’ drug policies and drug tests cover both legal and illegal drugs. But separating legitimate medical use of painkillers, such as opioids, from abuse can be a challenge.

Another problem is that the construction industry generally isn’t eager to discuss pain and the use of drugs to alleviate it.

“Unless you fall into federal contractor status, there is not a lot that you must do when dealing with these issues,” said P.K. Runkles-Pearson, a partner in Miller Nash Graham & Dunn. “In that culture, there is an inability to admit there is an issue. It is easier to talk if it is out in the open, but those can be really challenging conversations.”

Contractors take the issue of addiction very seriously, according to Joe Hughes, owner of Joseph Hughes Construction.

“Of the people in the industry I know, if they have a drug abuse issue, they would be all over it,” he said. “A person under the influence – whether it’s a legal or illegal substance – it’s a danger to other employees and we can’t have that.”

For Hughes, alcohol and marijuana have presented bigger problems than has opioids.

“We have gotten several people into treatment for alcohol over the years,” he said. “As a company I am aware of addiction and been exposed to people with addiction. My default is to talk to them and get them treatment.”

For years, the industry has grappled with physical pain that can arise from job performance. Mortensen’s proactive approach has included institution of a bend-and-stretch program intended to help workers loosen muscles before beginning a shift. The program has helped, according to Mehls.

“What we do is try to prevent those kinds of muscle sprains,” he said. “There has been a reduction. It’s now mandatory, and we have been keeping track of injuries.”

Even with such programs, construction is a physical job. Workers who suffer injuries or pain often turn to prescription medications for at least a short-term solution.

“How you use what is a very powerful substance to deal with pain without getting them addicted is the issue,” Salsgiver said.

Increased information in the medical community on how to prescribe the medications is a key to preventing abuse. Lack of training is one of the biggest drivers for the use of prescription pain medications, according to retired anesthesiologist Sam Mertz.

“Doctors who aren’t trained in pain or who have no training in chronic pain will generally prescribe opioids,” said Mertz, a member of the Portland Club’s addiction research committee.

Another issue has become the widespread acceptance of prescription drug use to alleviate pain. Prior to the 1990s, prescription pain medications, especially opioids, were largely relegated to end-of-life treatment involving cancer patients.

A series of articles in medical journals in the mid-1990s that claimed that opioids were not addictive convinced many doctors of the drugs’ safety, Mertz said. Today, Americans use 90 percent of the world’s prescription opioids.

“It’s been a perfect storm,” said Mark Altenhofen, CEO of Oregon Pain Advisors. “There has been marketing by pharma companies, a lack of understanding of pain and a lack of understanding the dangers.”

One of the biggest dangers is that a patient who becomes dependent on opioids often will move on to substitutes like heroin. The drug is cheaper and readily available when a doctor’s prescription has run out of refills. In Oregon, deaths from heroin overdoses almost quadrupled from 3,040 in 2010 to nearly 13,000 in 2015, according to a report from the Centers for Disease Control and Prevention.

One bright spot in pain management is that attitudes toward prescription painkillers are starting to change. The Oregon Medical Board has become more stringent about the quantity of pills a doctor can prescribe.

“Doctors are saying, ‘You can have this many pills and if you are still in pain, we need to see you,’” said Elizabeth White, project manager for the Oregon Coalition for the Responsible Use of Medications. “If you are still in pain, something else is going on.”

Avoiding issues associated with painkillers starts with how they’re treated in the first place. A comprehensive approach that involves methods such as acupuncture, chiropractic and physical therapy often is the best approach.

“There is a place for biomedical,” Altenhofen said. “We need to incorporate other strategies like behavioral therapies, biofeedback and movement therapies.”

Most insurance providers have at least limited coverage for physical therapies and some are beginning to dive into treatments such as acupuncture and chiropractic.

Taking time to find the right combination of therapies for each individual patient is key to both treating workers and getting them back into the workforce without a dependency problem, according to Altenhofen.

“Slow and steady wins the race in getting people back into an active lifestyle,” he said. “Some of that is getting educated about what strategies are most effective and which aren’t. Otherwise we are just shooting in the dark.”

AGC isn’t recommending any changes or additions to policies regarding the use of painkillers, Salsgiver said. The construction industry is largely looking to see what state and federal officials do to address issues with how opioids are prescribed and used to treat pain.

“I think it is fair to say national attention on the subject shows it is a problem nationally,” Salsgiver said. “How construction fits into that is still to be determined.”

Most companies don’t see a reason to change or create policies for a problem that they don’t believe exists in the industry.

“If it is going on, it’s so well hidden, no one knows about it,” Hughes said.

The post Could a hidden danger be building? appeared first on Daily Journal of Commerce.

With a 140-year history in Portland, Miller Nash was used to being one of the five largest law firms in Portland. But Seattle was a different story.

“To serve one, and then more of our clients, we opened an office in Seattle,” Dennis Rawlinson, Miller Nash’s chairman, said. “We had gotten a specific size (there), but we weren’t a player.”

That changed last year when Miller Nash, which was ranked as Seattle’s 39th largest firm, joined forces with Graham & Dunn, a 100-year-old Seattle firm that wanted to rise from its position as the 15th largest firm in that city.

As a result of the merger, the new firm of Miller Nash Graham & Dunn – with a combined total of 160 attorneys – laid claimed to the spot as the eighth largest firm in Seattle.

The prestige that comes with being a top-tier firm wasn’t the only reason joining forces appealed to both Miller Nash and Graham & Dunn, however.

“We have complementary cultures,” Rawlinson said. “That’s harder to find than you might think. … I think both firms realized there was an opportunity to take very homogeneous cultures and blend them into one of the largest in the market.”

Both firms also have solid expertise in similar practice areas, including banking and litigation. That combined expertise has created a firm that Rawlinson believes is unmatched in Portland and Seattle.

“No other law firm can claim that depth of experience (in those areas),” he said.

At the time the merger was announced, Rawlinson said the firm attorneys based in Portland would continue to work out of Miller Nash’s office. The Seattle-based attorneys would all work out of Graham & Dunn’s space in a building on Pier 70 in the city’s waterfront area. With its picture windows in each office and its houseboat-like feel, the space is perfect for a growing law firm looking toward the future.

“In a sense, we’re kind of doing what (the law firm) Perkins Coie did when it moved to the Brewery Blocks,” Rawlinson said. “We’re trying to shed this stuffy perception of old law firms that have been around for 130 or 140 years.”

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Portland architect and blogger Lucas Gray is disturbed by a trend he’s noticed here.

While it’s common for architects to be inspired by one another’s designs, he said, some Portland projects designed by local firms are looking a bit too similar – to the point that they appear obviously copied. The worst part, Gray pointed out last month on his blog “Talkitect,” is that Portland architects seem to be copying designs in their own backyard.

“Our (architectural) community is very small, and everyone knows everyone else and what they’re working on,” he said.

The observation got Gray thinking about architectural copyright and the legal rights of the architects to protect their designs as intellectual property. If he noticed that one of his own designs was copied, Gray said he would potentially pursue legal action.

But according to Portland attorneys specializing in intellectual property law, cases involving architectural copyright are often hard to prove. Most involve architects who can attest that their drawings were used without their permission to create a nearly exact copy of a building design. Otherwise, the burden of proof becomes a lot hazier.

“There’s a fine line between being copied and influenced by,” said John Mansfield of Portland-based MansfieldLaw; he specializes in representing clients involved in commercial and intellectual property litigation. “How do you tell the difference? It’s a hard line to draw.”

Mansfield and other Portland attorneys advise clear agreements with clients where the architects retain ownership of their designs to avoid potential litigation. Architects also often are entitled to more damages in copyright infringement cases if they officially register designs through the U.S. Copyright Office, said Kevin Hayes, an attorney with Portland-based Klarquist Sparkman.

“If you’re registered, it’s a whole lot easier to enforce your rights,” he said.

Even without an official copyright registration, architects have a legal right to protect their designs as copyrighted material and can receive monetary compensation in federal court if their work has been stolen, Mansfield said. Often, the trickiest aspect of cases involving architectural copyright is proving that a design was copied intentionally, he said.

A few years ago, Mansfield was involved in an architectural copyright case where a builder hired an architect to design a particular project and later used those same plans without the architect’s permission to construct a building with only slight modifications to that original design.

“That was an easy one because they were clearly (making) a derivative work,” he said. “That stuff happens. There are not a huge number of cases, at least around here, but it certainly happens.”

This is why intellectual property attorneys advise architects to pay careful attention to their client contracts. Unless otherwise specified in a contract, architects retain ownership of their designs, including the drawings, even though the buildings produced with those plans are owned by their clients. The Architectural Works Copyright Protection Act, passed by Congress in 1990, defines this right, said Alicia Bell, an attorney with the Portland office of Miller Nash.

“The default rule under copyright law is the author of the work owns the work,” she said.

Mansfield said he advises architects to avoid work for hire contracts where architects essentially sign away the right to retain ownership of their designs.

“You should know you’re giving away what would otherwise be yours,” he said.

Another place for architects to be wary while signing contracts is if they are collaborating with another firm, Mansfield said.
“There’s nothing wrong with collaborating, but be sure you know who owns what,” he said.

In the long run, architects will be glad they worried about these details, Mansfield said. The average federal copyright infringement case can cost $100,000 in attorney fees alone, he said.

“It is so much easier and cheaper to address these issues before you get into a contract than to resolve them afterwards,” he said. “I’d much rather have people do it right and not have to do litigation.”

Jeff Myhre, president of Portland-based Myhre Group Architects, said his firm pays careful attention to contracts and has never been involved in an architectural copyright dispute.

“Myhre Group Architects have never given full rights to a client,” he said. “Architects generally don’t like that because we design a building and then you can build it wherever you want.”

Myhre acknowledged that one reason why projects in Portland could appear copied are similar demands from developers. Also, architects are following the same city building codes, he said.

“Most (of) the designs today are a response to the codes in place today, the market demands and tied to budgets and schedules,” he said. “Generally speaking, they’re all the same kit of parts.”

For this reason, only truly unique portions of a building design are protected under copyright law, Bell said.

“It doesn’t protect standard elements like gothic arches,” she said. “You’re going to have protection for anything that’s artistic or original.”

The court of public opinion may be the best way to expose architects who are copying others’ designs, Gray said. It’s why he wrote his recent blog post about architectural copyright with side-by-side renderings of projects he suspects were copied.

“These buildings aren’t exactly the same, but they are similar enough to at least catch my eye and other people’s eye that they’re strongly influenced,” Gray said. “Even if they’re not doing it consciously, they’re doing something wrong.”

The post When design flattery goes too far appeared first on Daily Journal of Commerce.

Portland attorney Carla Kelley just returned from a trip to Wales, but it wasn’t her legal life that led her there. It was her other passion: singing.

The in-house counsel for the Portland law firm of Miller Nash spends a good portion of her free time as a member of the Oregon Repertory Singers group.

“(The Oregon Repertory Singers), for me personally, it’s the right level,” she said. “We are not a professional group, but everyone’s a good singer, they all read music well, and the conductor – Ethan Sperry, who also heads Portland State University‘s music program – is just amazing.”

The Oregon Repertory Singers has operated in Portland for 40 years. In addition to a professional-caliber adult choir, the group also features an education and performance-based youth choir program. In order to create a roster of the best singers in Portland, the group requires singers to audition every year.

The Repertory Singers’ performances range from working with the Vancouver Symphony to touring around the world, including the most recent weeklong visit to Wales that Kelley participated in.

During the tour, Kelley’s first with the singing group, the Repertory Singers performed in ancient cathedrals and participated in an international music festival. But it was a performance in an old church in the small town of Bangor that provided the most memorable moment for Kelley.

In an old church filled with schoolchildren, senior citizens and the church’s entire congregation, Kelley and the other Repertory members sang a traditional Welsh lullaby.

“The members of the audience started crying; we started crying,” Kelley said. “It was the most musical thing I had ever experienced. This was little Oregon Repertory Singers connecting on a musical level with the people of Wales.”

As moving as the moment was – and as much as Kelley enjoys singing in front of an audience, large or small – she’s never been tempted to try to become professional. In the law, she said, she’s found a perfect second career.

Kelley’s first career was in administration and public relations, working for universities and colleges. Then she moved to Portland, where she began meeting more and more lawyers, and began wondering if she might find a second career in law enjoyable.

“I was looking for something more challenging in my work life,” she said, “and then I found out that there was a (night) school at Lewis & Clark (Law School).”

When she was younger, Kelley took the LSATs, the exam that aspiring lawyers are required to take in order to enter law school. When she began flirting with the idea of law as a second career, Kelley managed to track down her old scores.

Lewis & Clark accepted the scores and Kelley. But even as she enrolled as a law student, she wondered if she was making the right choice.

“I was 38 when I started law school, and I agonized about my age,” she said. “I kept thinking, it’s a four-year program. It’s a night program. I’ll be 42 when I graduate.

“Then I thought, if I don’t go to law school, I’m going to be 42 anyway, so I might as well be 42 with a law degree.”

Kelley and the field of law are so compatible that when she retired, after working first at Miller Nash and then as in-house counsel for Northwest Natural Gas and general counsel for the Port of Portland, the partners at Miller Nash contacted her and asked her to return to the firm as senior counsel.

“As it turned out, the law and I are very compatible,” Kelley said.

But even though she’s found a perfect fit with her legal career, she never abandoned her favorite hobby. In addition to her involvement as a singer with the Oregon Repertory Singers, she recently accepted a position on the group’s board, where she will serve as secretary.

“Singing has just always been something that gave me a lot of joy,” Kelley said.

The post Miller Nash attorney finds music makes the world go round appeared first on Daily Journal of Commerce.

Portland Playhouse knew it needed to remove a wheelchair ramp leading into the 105-year-old North Portland church it calls home. The city of Portland stated that the ramp infringed upon the sidewalk, so the leaders of the nonprofit theater had the ramp removed within the required 30-day time frame.

The city responded by sending a cease-and-desist letter, demanding that the theater company stop all productions in the converted neighborhood arts center. The city claimed the theater was a commercial venture illegally operating in a residential neighborhood.

“We thought that was just a mistake. We let them know we are a nonprofit and a community service, and we thought that would be the end of it. We quickly learned it was much more complicated,” said Brian Weaver, Portland Playhouse’s artistic director.

The city had never before recognized a theater as a community service, which is allowed to operate in a residential zone, but only as a retail or commercial operation. Will Rasmussen, an attorney with Miller Nash, took the case pro bono and said it was unique on several levels.

“The theater is uniformly supported in the neighborhood and the community. It’s very unusual in land-use cases to not have anybody opposing a project, but nonetheless the city is trying to shut it down,” he said. “It was also unusual in the value the group gives to the community. There aren’t many other arts and cultural outlets in the King neighborhood.”

The issue took about nine months to be resolved, ending recently with a Portland City Council vote in favor of Portland Playhouse – followed by loud cheering from the 100-plus supporters who attended the hearing.

The council’s vote means other theaters, arts centers and cultural organizations that hold nonprofit status can be considered a community service and be located in residential neighborhoods as well.

“I personally hope that a result of this is that we end up with more arts and cultural venues in Portland neighborhoods,” Rasmussen said.

Weaver said that Miller Nash’s pro bono services were a lifesaver for Portland Playhouse.

“The process with the city is so daunting and it’s easy to feel bullied by the process, so having Will and Miller Nash there to support us made a huge difference,” he said.

The post Portland Playhouse battle sets the stage for similar land-use scenarios appeared first on Daily Journal of Commerce.

For the second time in their lengthy legal careers, Steve and Cindy Horenstein have opened their own law firm in Vancouver, Wash. They quickly found that much has changed since their first venture 13 years ago.

When they began hiring associates, for example, their top candidates responded not to ads placed in traditional channels like legal publications and law school posts. It was a Craigslist ad that connected the Horensteins with Sekou Caldwell and Thomas Hackett, both University of Washington law school grads well versed in real estate and land use law and business planning, respectively.

Office management software once designed primarily for large firms now is created for small firms as well. And new legal research tools like WestlawNext improve efficiency for everyone in the firm.

Perhaps the biggest change, however, was the freedom to implement a completely new billing system, said Steve Horenstein, formerly a marketing manager for Miller Nash.

“Clients are tired of getting billed by the hour when they can’t see the costs,” he said. “Things can be done much more leaner and meaner now, and clients expect that. Clients make better business decisions when they know how much legal services cost.”

With the billable hour as a last resort, Horenstein Law Group has implemented billing options such as flat fees, budgets based on scope of work, and retainers. The firm’s small size allows it to be nimble when it comes to experimenting with various billing models, Cindy Horenstein noted.

Another major change was the decision to specialize, rather than offer comprehensive services for clients. Horenstein Law Group focuses on business planning, land use, real estate and government strategies. The firm supplies referrals for clients seeking other legal services that are outside that portfolio.

While much has changed since their firm’s first incarnation, one thing remains the same: the personal and professional compatibility that drew the Horensteins together in the first place. Both grew up in Vancouver, but didn’t meet until they worked together at a law firm after Steve graduated from Lewis & Clark Law School and Cindy graduated from Willamette University College of Law.

A few years after starting their first practice, Cindy Horenstein began working at home while raising their two sons, and Steve Horenstein joined Miller Nash. This year marks their 20th anniversary as well as the launch of their new firm.

The post Legal duo find life really is different the second time around appeared first on Daily Journal of Commerce.

There’s a bit of an experiment underway at Miller Nash, which for the first time has both a managing partner and a firm-wide chairman at its helm.

The firm recently announced that Don Burns, managing partner since 2007, will return to his employee benefits practice full time. Earlier this year, Kieran Curley took over as managing partner, and Dennis Rawlinson began serving as the firm’s chairman.

In his new position, Rawlinson oversees the firm’s strategic planning process and leads its five-member Executive Committee, which determines the firm’s policies. Miller Nash noted in its announcement that while the chair position is new, the role reflects the work Rawlinson has been doing for several years. He will continue his commercial litigation practice.

Curley, the youngest managing partner Miller Nash has ever appointed, now oversees the firm’s internal management and the implementation of its strategic plan.

Rawlinson and Curley say there is a learning curve that comes with the new structure, though the fact that they are colleagues in the firm’s litigation department and have worked on cases together eases the transition.

“I think the structure makes a lot of sense for us in that it allows one person to focus on the day-to-day operation of the firm while the other person takes a long-term strategic look at what the firm needs to accomplish,” Curley said.

Rawlinson sees the biggest challenge as charting the firm’s course for the future.

“That’s what strategic planning is all about,” he said. “We’re going to take a look at our clients, our relationships, our talent base and our resources and figure out the best way for those to support the future of the firm, not only months out but three to five years out.”

The post Miller Nash’s ch-ch-ch-changes appeared first on Daily Journal of Commerce.

(Editor’s note: This piece originally ran in the May 5, 2011, issue of the BrieflyLegal e-newsletter)

In March of this year, the 91��Ƶ held its first Leadership in Law awards as a way to recognize local attorneys with more than 10 years of experience. And while the profiles we wrote at the time for each of them were interesting, we felt they left us wanting to know a little more about what really makes these legal leaders tick.This week, we talk to Peter Richter, a partner at Miller Nash in Portland.

Briefly Legal: What is one of the most amusing or unusual memories you have from law school?

Peter Richter: Dean Orlando John Hollis, who was the most formal man alive with no sense of humor, reciting the words to the then-hit song, “Come on Baby Light My Fire” at the annual law school “Smoker.”

BL: If you could choose a fantasy career that is totally different from practicing law, what would it be?

Richter: My fantasy career would have to be acting.

BL: In your opinion, what is the best legal movie or novel ever?

Richter: The best legal movie ever is To Kill a Mockingbird, and the best novel is “A Time to Kill.”

The post 3 Questions: a quick conversation with Peter Richter appeared first on Daily Journal of Commerce.

“It feels like the thawing of a long winter.”

Executive Vice President Bart Eberwein and others expressed relief today, when announced that in late 2013 work will resume at Park Avenue West, a downtown Portland high-rise project that stalled more than two years ago.

The scheduled restart date for the project, considered by some people to be a symbol of the recession’s impacts, is based purely on an expectation that large tenants will seek space in late 2015 and early 2016, TMT Development President Vanessa Sturgeon said.

Complete construction financing for the project was procured within the last 90 days, Sturgeon said.

Park Avenue West is planned as a 27-story office and retail building in a prominent location, on a block bounded by Eighth and Ninth avenues and Yamhill and Morrison streets. TMT Development halted the project, estimated to cost more than $100 million, in April 2009 because of financing problems. The big “hole in the ground” has since generated no work except for occasional adjustments of a towering crane that occasionally blows over the neighboring Nordstrom store.

“It’s a symbolic hole in our downtown, and getting this tower under way is a positive sign for everyone,” said Scott Andrews, chairman of the Portland Development Commission’s board and president of . “And alternatives (for leasing) are good for the marketplace.”

Activity is scheduled to take place at the site soon. To make the work-free zone more attractive, crews will soon take down the crane and install an 8-foot-high wall around the site. TMT has partnered with New Avenues for Youth for homeless and at-risk youth, under the direction of an artist, to create a mural.

Meanwhile, the project team will actively seek tenants for the building planned to offer more than 500,000 square feet of Class-A office space. Presently, no lease agreements are signed and no discussions are under way with prospective tenants, according to Sturgeon, but the team believes its opening date is on target because some large corporations and law firms are expected to shop for office space around that time.

“If we target toward that date, we’ll have exactly what they’re looking for,” said principal Scott Madsen, who is marketing Park Avenue West to potential tenants.

Madsen said the project could move forward earlier if tenant interest was to surge at the right time. The project did generate interest from prospective tenants, including law firms and , looking to lease space beginning in 2013 or 2014, but timing for construction didn’t work out for those tenants, and they stayed where they were.

Madsen said he doesn’t expect a big, local tenant to sign before 2015. The team wants to be prepared for that wave, however.

“When we look into our crystal ball … the next wave is happening in the 2015-2016 range. It makes a lot of sense just to prepare for that timeline,” Madsen said.

And in the fourth quarter of 2013, the team will be ready, said founder and principal Robert Thompson, who designed the building.

“There is steel sitting here in Portland, and curtain wall systems in Korea ready to erect,” he said. “The building is ready to go.”

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