Author: TSA Press

Everyone has come to the conclusion that they can’t start on the regular date, which is the middle of May. There’s a lot of concern about having people travel to summer programs and get on planes. There’s a general feeling that people don’t want to spread the virus from city to city.

Everyone is waiting for someone to lead it off. That’s true all the time, but really more now.

— Peter Zeughauser, a legal strategist, commenting on the impact that the COVID-19 pandemic has had on this year’s summer associate programs. He expects that many law firms will announce the final decisions on their summer programs — whether it will be delayed, held virtually, or held at all — sometime this week.

Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Getting paid is the bane of most lawyers’ existence, but clients have good reasons to stay on the ball too. Joe chats with Aaron Pierce, GM of CounselLink, about why clients benefit from staying on top of the billing process. In a nutshell, with CounselLink, clients generate a wealth of knowledge from their billing data — efficiencies revealed, new payment models considered, and, yes, the relationship with outside counsel strengthened.

Last week, Gilead Sciences made significant adjustments to the Phase III trials of its drug remdesivir in hospitalized patients with Covid-19, leading to some speculation that the company may have lowered its expectations for the drug. Two investigators in the trials weighed in on what the changes could mean, as well as some of the challenges they have encountered in enrolling patients in the trial.

Foster City, California-based Gilead launched the two randomized, but non-blinded trials – comparing remdesivir and standard treatment with standard treatment alone – last month. One was a 400-patient study in severe disease that measured the proportion of patients with normalization of fever and oxygen saturation over two weeks. The other was a 600-patient trial in moderate disease measuring the proportion of patients discharged from the hospital in the same time frame.

But on April 6, the company increased the enrollment targets to 2,400 patients for the severe-disease study and 1,600 for the moderate-disease study. In addition, it changed the primary endpoints to measure patients’ odds for clinical improvement after 14 and 11 days on a seven-point scale that ranges from the patient dying to being well enough not to require hospitalization.

A Gilead spokesperson wrote in an email that the enrollment targets were adjusted to increase access to remdesivir and provide additional data, but did not address the question of why the endpoints were changed except to say that the change was unrelated to the enrollment target increase.

“The way I interpreted that is that they wanted to provide access to remdesivir while they were analyzing the data from the first part of the study,” said Dr. Debra Poutsiaka, an infectious disease physician and lead investigator of the study for Tufts University in Boston, in a phone interview, referring to the enrollment increase. “That’s how it was conveyed to us.”

In a note to investors, RBC Capital Markets analyst Brian Abrahams gave some potential reasons for why the endpoints were changed.

“We believe the changes improve alignment to the latest understanding of COVID-19’s course and should maximize sensitivity to detect any potential treatment effect, though they also imply that – perhaps based on data the company may be observing from ongoing experience with the drug – the magnitude of benefit, if any, is likely to be modest,” Abrahams wrote. He added that it would align with the view that like other drugs in development for COVID-19, remdesivir is more likely to have incremental benefit rather than being a panacea.

But Dr. Prashant Malhotra, lead investigator of the studies for New York City-area health system Northwell Health, said in a phone interview that the new endpoints still reflect the information sought for the ones that were previously used, with measures encompassing the spectrum of the patient dying to being well enough for discharge, along with some based on “statistical finesse.”

“I wouldn’t read too much into the change,” Malhotra said.

Despite the changes, Abrahams wrote that data from the Gilead trials is still anticipated in May.

But while it’s unclear whether it would affect the timing of trial data, both interviewed investigators said enrollment in the moderate-disease trial has been slower at their centers than that in the severe-disease trial, for several reasons.

The Gilead spokesperson did not respond to a request for comment about study enrollment. Neither investigator had the current enrollment number; Poutsiaka said the last figure she saw showed the moderate-disease study was less than one-third enrolled, but that was “weeks ago.”

Poutsiaka said that it appears many patients with moderate disease are simply staying home rather than going to the hospital – hospitalization is a requirement for taking part, and the drug is administered intravenously – even if they fit the study’s criteria for enrollment. The drug is intravenous, and hospitalization is required for trial participation.

“I think that the people who come into the hospital are by definition sicker, and that’s why we’re seeing more that would qualify as severe disease in the Gilead trials,” she said.

In New York, Malhotra said, the issue is that because of the extraordinary pressure the disease is exerting on hospitals – including being asked to increase capacity by 50% – some patients who would ordinarily be admitted for observation are instead being discharged or transitioned to home observation, thereby disqualifying them for enrollment into the trials.

As of Tuesday morning, New York City, a major epicenter of the pandemic, had 106,763 cases and 7,349 deaths, with the U.S. total far surpassing half a million.

But another factor slowing enrollment in the moderate-disease trial and even the severe-disease trial, Malhotra said, is that thanks to the publicity around the antimalarial drugs hydroxychloroquine and chloroquine, patients who are admitted to the hospital are frequently put on those drugs and thus rendered ineligible for the remdesivir trials. Both studies’ exclusion criteria include participation in other clinical trials for Covid-19 treatments and “concurrent treatment with other agents with actual or possible direct acting antiviral activity against SARS-CoV-2” less than 24 hours before remdesivir dosing. Malhotra explained that patients in the remdesivir studies must have received a positive diagnosis no more than four days prior to randomization, and together with the need to be off the other drugs thus shortens the window for possible enrollment.

“It’s anecdotal, but I do think it plays a role,” Malhotra said, adding that he had heard similar accounts from investigators at other centers.

Consenting patients has also been a challenge due to the need to avoid direct contact with them and concerns that the traditional paper forms could act as fomites that could spread the virus. Poutsiaka said Tufts has adopted a completely remote process involving the investigator, an impartial witness, the patient and any family members and friends getting on the phone to coordinate consent, though the logistics of a phone call with four or five people are the “most difficult part” of the study. Northwell has adopted workarounds like calling patients’ legal representatives.

Photo: Ulrich Perrey, Pool/AFP, via Getty Images

It’s pretty clear the economic impact of the COVID-19 global pandemic is pretty bad. Biglaw’s been reeling — instituting salary cuts, reductions in partner draws, furloughs, and even layoffs to maintain their cash flow to weather the coronavirus storm. But beyond the prudent financial decisions most in Biglaw are willing to admit to, there are whispers and rumors that more is going on.

That’s right, it looks like stealth layoffs are coming back to Biglaw. Made popular during the 2009 recession, firms often feel it is a way to save face and cut costs at the same time. But while what we’re hearing is still in the rumor stage, Above the Law thought it best to give everyone a refresher on the insidious nature of stealth layoffs to help you spot it when it happens at your firm.

What are stealth layoffs:

Due to their, well, stealthy nature, they’re a little hard to define. But basically it’s when a firm wants to cut headcount but doesn’t want blowback from announcing actual layoffs. So, they’ll give the associates X number of months/weeks to find a new job and the firm may even couch the reductions in performance review terms, making those let go doubt their lawyering skills.

When are they used:

Well, pretty much all the time. But they’re the most prevalent during economic downturns. Rather than signal some perceived weakness, a firm tries to cut overhead without making a splash.

Why are they awful:

It’s not us, it’s you. That’s the message of the stealth layoff. Often the attorneys who find themselves suddenly out of work have not previously had a negative performance review. Despite that history, the firm decided they were the chaff that needed to be cut, never mind that in robust economic times they’d continue to receive good performance reviews.

Are firms using stealth layoffs now:

If the ATL tips line is anything to go by, hell yes. Some firms, in assuring associates that purely economic layoffs were not forthcoming, seemed to signal that headcount reductions in guise of performance review were on the table.

But the challenge is confirming exactly where they’re happening. The firm’s go to media response is that there are no economic-based layoffs (because they believe the line that they’re only letting go of associates because of performance issues). And by refusing to acknowledge to the fired attorneys that economics beyond their control are fueling the employment decision, they’re creating a sense of shame the firms depend on to keep news of their stealth layoffs from circulating. No one wants to tell the world they were fired for being a crappy attorney and that’s what firms are depending on when they feed that fiction.

So, please keep Above the Law in mind when attorneys are suddenly let go and the firm insists there’ve been no layoffs. You can email us or text us (646-820-8477). Even if we are unable to verify the move, we are listening.

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Hey, Counselor No Pants, cut that out! No one on earth wants to see you at a video conference in your jammies, least of all Judge Dennis Bailey of the Broward County Circuit Court.

“One comment that needs sharing and that is the judges would appreciate it if the lawyers and their clients keep in mind these Zoom hearings are just that: hearings. They are not casual phone conversations,” His Honor wrote in a letter posted to the Weston Bar Association’s website. “It is remarkable how many ATTORNEYS appear inappropriately on camera.”

“ATTORNEYS?” Do tell!

“We’ve seen many lawyers in casual shirts and blouses, with no concern for ill-grooming, in bedrooms with the master bed in the background, etc,” he continued. “One male lawyer appeared shirtless and one female attorney appeared still in bed, still under the covers.”

So many questions! Were Mr. Sunsout Gunsout and Ms. Florence Nightgown at the same hearing? Would it have been preferable for the female attorney to get out from under the covers? If the Court objects to “ill-grooming” in April, exactly what does it expect will happen in May when we’ve all been cruelly separated from barbers and hair salons for two straight months?

And where besides the bedroom are parents of small children supposed to lock themselves for a few seconds of peace and privacy during a hearing? Not outside by the pool, apparently!

“And putting on a beach cover-up won’t cover up you’re poolside in a bathing suit,” Judge Bailey warned. “So, please, if you don’t mind, let’s treat court hearings as court hearings, whether Zooming or not.”

“I would want [attorneys] dressed showing some respect for their recognition that this is a court hearing,” the man who shows up for work every day of the year in a shapeless black smock told the Miami Herald.

In conclusion, no muumuus, no stubble, no PJs, no visible bedroom furniture, and NO SHOES, NO SHIRT, NO SERVICE.

A Letter from the Honorable Dennis Bailey [Weston Bar Association]
Broward judge tells lawyers to get out of bed and wear a shirt for Zoom hearings [Miami Herald]

Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

While Utah is on track to become the first state to shift to “diploma privilege plus” because of the logistical hurdles presented by the COVID-19 crisis with other jurisdictions openly considering following their lead, it was inevitable that we’d hear from the NCBE — the folks with the biggest vested interest in maintaining the bar exam. The organization that’s dominated the bar exam game since the 1930s released a report last week entitled “Bar Admissions During the COVID-19 Pandemic: Evaluating Options for the Class of 2020,” and surprising no one, they take a dim view of anything that impacts their monopoly alternative licensing paths.

After offering the requisite lip-service to the plight of students who will enter the workforce without having an opportunity to take an exam and then be forced to leave their jobs  to prepare for a future test — which could be long off due to space restrictions — the NCBE proceeds to violently attack a bundle of straw they’ve heaped together.

Why, they muse, some diploma privilege proposals are silent on character and fitness review! Probably because these proposals all assume that existing character and fitness procedures remain unchanged… and have nothing to do with the NCBE anyway. How can attorneys move to a new state without the UBE!? Attorneys managed to survive without the UBE for the first couple centuries of American legal practice, so they’d probably find a way to survive afterward.

As those charged with the important responsibility of regulating the legal profession understand, public protection remains a priority even in this time of crisis. Diploma privilege in effect removes the public protection function vested in the courts and places it with the law schools, but with no independent, vetted, objective, or consistent final check on whether graduates are in fact competent to provide legal services. The public, and certainly legal employers, rely on passage of the bar examination as a reliable indicator of whether graduates are ready to begin practice.

No, it doesn’t. It removes the subject-matter competency function of the NCBE and local bar examiners and places it with the law schools. The courts would still evaluate character and fitness and, in many models of diploma privilege, the outcome of the applicant’s supervised practice period as part of executing the public protection function. And while subject matter competency plays an important role in public protection, the bar exam has always been a clunky way of ensuring it. Corporate lawyers cramming Family Law minutiae into their heads for a summer and promptly dumping it? Trusts & Estates lawyers showing their mastery of search and seizure caselaw? Law schools may fail to turn out “practice-ready” attorneys — because it’s impossible to do through subject matter instruction alone — but the bar exam does no better on that score.

In a thrilling victory for the power of tautology, the NCBE contends that the ABA’s accreditation process could never successfully replace the bar exam because the ABA wouldn’t be able to use bar exam results to make accreditation decisions. Of course!

Admittedly, law school accreditation would have to markedly change if the bar exam were replaced in the long-term. Coincidentally, this is what Wisconsin has already done — setting high, core competency standards for UW and Marquette and then allowing graduates diploma privilege admission. In fact, one could plausibly argue that the reason we have diploma mill schools out there ripping off students is because regulators have largely abandoned (or at least been sidelined) rigorous law school accreditation because they shrug and say, “we’ll let the bar exam sort it out” after students are $100K+ in debt. But for the bar exam’s insistence that it’s better than law school at creating lawyers, we’d have a better law school regime.

While this is not the place to respond to the unfounded and unsubstantiated criticisms that some commentators are directing at the bar exam….

I feel seen. Not to give the NCBE a little practice tip, but when you throw in adjectives like that it only risks flagging that you think the coming argument is too weak to stand on its merits. There’s a time and a place for adjectives and adverbs in adding flair, but when they just sit like puds — redundant ones at that — they’re better skipped.

In this case, they were unconsciously correct — the argument was weak. And more than a little racist and sexist.

Regarding disproportionate impact, it is true that differences in average performance on the bar exam tend to be observed across racial/ethnic groups. However, the same or greater differences in average performance across racial/ethnic groups also tend to be observed in performance in law school (law school GPAs), on the LSAT, and in undergraduate GPAs…. To say that the bar exam disadvantages particular racial/ethnic groups ignores the bigger picture of educational pipeline-related differences in performance that are observed in law school and prior to law school. These differences are not eliminated, nor are they exacerbated, by the bar exam.

Yes, academic achievement differentials have a great deal to do with disparities further up the pipeline. Throwing students under the bus in first grade compounds it and it’s difficult if not impossible for students to catch up by throwing more resources into higher education. But… what does this have to do with the outlined criticism?

The bar exam is functionally distinct from the other examples. Undergraduate GPAs, the LSAT, and law school grades are measures of relative achievement that exist because there’s some actionable value to the distinction — someone goes to Yale and someone doesn’t. But there is no Bendini, Lambert & Locke out there only hiring the person with the best bar score. The bar is a minimum competency test. The pool of applicants is roughly smooth by this measure. These are all law school graduates and even if there are lingering advantages and disadvantages that could be charted on a letter grade scale (an if that should not be given the sort of blanket treatment shown in this report) it doesn’t matter in a test when clearing the, pun intended, “bar” here. If there’s a marked difference in result here, it’s either the fault of the exam or the fault of predatory schools — which, as described above, exist largely because of the bar exam’s outsized importance to our licensing schemes.

The social responsibility concerns ring so hollow. Earlier in the report, over the span of two paragraphs, the NCBE goes from arguing that supervised practice would grossly discriminate against “first-generation law students from socioeconomically disadvantaged families” to arguing that it’s a perfectly fine solution as long as it ends in a bar exam. It’s almost as if the concern is less about those students than in maintaining the exam. Which, of course, is the whole point to this report.

Oh, and “for the ladies,” apparently you suck at taking multiple choice tests:

Similarly, gender differences in average performance observed on the bar exam are also observed in law school and on the LSAT: men tend to perform better, on average, on multiple-choice exams (like the MBE and the LSAT), and women tend to perform better, on average, on essay exams (like the MEE and MPT portions of the bar exam).

So it’s just too bad the results of multiple choice tests make up the bulk of the bar exam, a fact that a few pages earlier was hailed as the value of the bar exam because law schools and their essay tests lacked “quality and reliability.” Also, you know what the practice of law isn’t? A multiple-choice profession! Reliably testing the competency of a new attorney would require the complex problem-solving and argument crafting skills displayed by essays. But that would be too hard to test, so I guess the women have to suffer. Assuming there’s a value to this distinction they’ve casually tossed out there without citation, which we should not concede.

America isn’t ready right now to permanently move to diploma privilege admission. Sure. However, we’re more than capable of doing so with thoughtful adjustments like those proposed by the “diploma privilege plus” regime and that’s what has the NCBE so concerned that it turned out this screed. They understand that if the diploma privilege experiment manages to work, it casts doubt on the whole logic of the whole bar exam model. Maybe there is a continuing role for a bar exam, but it’s irresponsible at this point to just shrug off an opportunity to critically reconsider the licensing process from the ground up.

Earlier: First State Opts For Emergency Diploma Privilege Plus Admission

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.