Author: TSA Press

I think we can all agree that COVID-19 is one of the most significant health events of our lifetime. Many of you are likely sheltering in place, working remotely, and trying to make the best of a very difficult situation. Thankfully, technology is helping make this difficult situation a bit more palatable when it comes to online legal practice, including the use of mobile devices, videoconferencing, and remote access apps and platforms. Although a great help to the practice of law, we all look forward to the day when restrictions are lifted and our practices (and economy) can get back on track and operating under more normal circumstances. What you may not realize, however, is that this pandemic is placing more than your health at risk.

Given the current restrictions in the US and many foreign countries, most of you are relying on technology to remain of service to your company (or clients). Oddly, it seems that the current pandemic restrictions have helped us leverage technology even more in our practices. It has helped us engage in more videoconference calls; remotely access, edit, and collaborate on documents; and otherwise coordinate discovery and litigation with opposing counsel and the courts electronically. With such technological capabilities, however, come equally challenging issues regarding the valuable intellectual property of your company (or client).

By now, most of you have probably heard about the security issues faced by Zoom Video Communications regarding its online video conferencing system, forcing the company to disable certain features on the popular platform. From unauthorized access of conference calls to what has become known as “zoom-bombing,” the online videoconferencing solution has faced withering criticism from the user community to address these vulnerabilities. Although most of the reported unauthorized eavesdropping on this platform appears to have been more akin to vulgar pranks than espionage, imagine a competitor or nation-state hacker gaining access to a conference call where valuable IP is being discussed. Think I am being paranoid? Think again.

Just as we have come to realize firsthand the importance of taking steps to help minimize proliferation of COVID-19, your company (and clients) need to realize the importance of remaining vigilant with their IP under these circumstances. Here are three considerations that immediately come to mind:

1. Be Wary of SaaS and Remote Access Vulnerabilities. It should come as no surprise that the aforementioned security vulnerabilities are not limited to videoconferencing. Any remote access to systems that contain valuable IP harbors risk. As I have written before here and here, for example, security optimization and data compartmentalization via network segmentation is critical for any company that is permitting remote access by its personnel. Unfortunately, the COVID-19 pandemic forced many organizations to rely heavily upon existing infrastructure that may not have been hardened to such attacks. More importantly, it has forced many organizations to scramble to engage third-party providers to maintain operational continuity without a full understanding of the risks presented by the use of such platforms. Don’t remain inattentive to the details here — now, more than ever, continued diligence is key.
2. Re-Assess IP Portfolio Vulnerabilities. A corollary to the above point is to re-assess where valuable IP resides and how it needs to be accessed during this pandemic. Now is not the ideal time to begin to take stock of the situation (if that is the case, your company or client is likely way behind the curve), but if such steps have not been taken already then they should be approached with gusto. Think of some of the steps taken in implementing a valid trade secret protection program as an example — at a minimum, identifying those requiring access to all (or part) of the trade-secret information, addressing necessary implementation of appropriate physical and virtual security controls to such information, and implementing the requisite audit control of such access. Like data mapping required to understand acquisition of personally identifiable information for GDPR compliance, mapping a company’s IP internally for access through the cloud is a vital step to understanding and rating specific and acceptable data risk. If the organization is unable or unwilling to do so, they do so at their own peril.
3. Prepare a Post-Pandemic IP Game Plan. This point is perhaps the most problematic because it requires a somewhat apocalyptic approach. Let’s be honest: the economy has drastically slowed down as a result of the required steps to impede (if not halt) the spread of COVID-19 in the US and many countries globally. It is not a stretch to presume that when restrictions lift, the economy will not immediately rebound like nothing happened, but will likely take time to get running at full speed –- a process that will not be without its own fits and starts. Certain organizational considerations for IP acquisition pre-pandemic may no longer be viable. Pre-pandemic priorities may require significant realignment. The point here is that one of the most important things your company (or client) can do is to re-evaluate its IP commercialization strategy now so that it can adapt it to a post pandemic world.

I continue to hope and pray that everyone is weathering this COVID-19 pandemic well and  is approaching the future with optimism. That said, we all need to be realistic in assessing IP risk both during this pandemic and after it passes. This may not be an easy task for many, but I promise you it is a necessary one. If you don’t inoculate your practices and IP by taking these steps, you may just find yourself wanting to stay sheltered in place from the fallout.

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 Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

As anyone who lived through the George W. Bush administration will tell you, nothing can possibly go wrong when you put Alberto Gonzales in charge of something. The former Attorney General most famous for saying that declaring that torture wasn’t torture and then resigning before being impeached is now the dean at Belmont University College of Law and like the rest of the legal academy, he’s trying to find a solution to keeping a law school running during a pandemic. Though while the overwhelming majority of law schools have gone to a mandatory Pass/Fail option to avoid unreliable results while still guaranteeing students display subject matter competency, Belmont cooked up a different plan.

Belmont’s policy is an optional, post-grading Pass/Fail system, which is a mistake for all the reasons outlined in these articles on Notre Dame’s poor policy, but it manages to get even worse because the school is limiting students to seven credit hours of Pass/Fail. Since the election occurs after grading, students taking a Pass/Fail are actually flagging that any potential employers should be suspect of student results in certain classes. And because students won’t choose the same classes, employers will see some people with As in those classes and others with Ps and assume — fairly or unfairly — that this is a C-level student.

This helps absolutely no one.

And there’s pretty much no one outside of the dean’s echo chamber suggesting this policy makes a lick of sense. The 1L class of 144 students wrote an open letter demanding a new grading policy. A professor reportedly told a class “This is the option nobody wanted but it’s the option we have.” The exam period kicks off later this week and the school is still clinging to this nonsense.

A tipster informs us that students are being told, “There are two things you can control: your attitude and your effort” which isn’t actually true since they also control which classes will be taken Pass/Fail, meaning the school can’t even stick to its own tone deaf “can-do, bootstraps” philosophy. Schools sticking to a “screw it, let’s pretend nothing’s changed” may be wrong but at least it’s intellectually consistent. It’s not even clear what a policy like this is supposed to accomplish.

Honestly, an optional, pre-exam, blanket Pass/Fail seemed like the worst possible Pass/Fail accommodation but Gonzales has dug deep and come up with something even more problematic. The policy is basically a fig leaf, but where the fig leaf is completely transparent.

It boggles the mind.

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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.

The nation’s governors have banned mass gatherings to stop the spread of the deadly coronavirus, and the Justice Department is on the case! Not to give them the support they need to keep Americans safe. Don’t be silly, Donald Trump has been very clear that the federal government isn’t a “shipping clerk” for the states. No, the DOJ is busy threatening any state or municipality which might infringe on the sacred right of Christians to assemble during a pandemic.

“AG Barr is monitoring govt regulation of religious services,” tweeted Department spokeswoman Kerry Kupec, who came to the DOJ from Alliance Demanding Freedom, where she spent her days attacking laws that protect trans kids because, “Big business shouldn’t be advocating for boys to share the girls’ locker rooms and showers — and vice versa — in our public schools.”

Ain’t she a peach!

“Expect action from DOJ next week!” Kupec promises vaguely, warning that Big Brother Barr is keeping an eye on those pesky states. Which is entirely consonant with Barr’s recent ramblings to Laura Ingraham that, “A free society depends on a vibrant religious life by the people, so any time that’s encroached upon by the government, I’m very, very concerned.” But not entirely consonant with facts or law.

Because here on Planet Earth, no one is “singl[ing] out religious orgs” for persecution. Kansas’s Governor Laura Kelly actually removed an exemption for churches from the ban on mass gatherings, and had to sue the legislature to enforce it. The difference between cars parked at the grocery store and cars parked in a church parking lot during a stay-at-home order is obvious to anyone but a 38-year-old wingnut judge in Kentucky auditioning for a spot on the Supreme Court. And curtailing the spread of contagion by barring large assemblies is a reasonably well-tailored measure to advance a “compelling governmental interest,” such that it clearly satisfies the strict scrutiny requirement for laws affecting religion.

“A Justice official” was duly dispatched to CNN to clean up Kupec’s tweet.

A Justice official said Barr is examining multiple instances around the country, not just the case of Louisville’s, where it appears religious institutions may have been singled out in Covid-19-related public gathering restrictions.

Government can legally limit assemblies, including religious gatherings, to protect health and safety, the official said. But the government may not impose special restrictions on religious activity that do not apply to similar nonreligious activity.

If a municipality imposes fewer or no restrictions on movie theaters, restaurants, concert halls and other comparable places of assembly, it may not order houses of worship to close or limit their congregation size, according to the official.

Ah, yes. In the very real town of Thatneverhappenedville, BS, the evil Democratic mayor has allowed the local multiplex to remain open, but arrested the pastor and his wholesome, cornfed family for assembling to honor the Lord. You bet!

The Department’s Voting Section appears to have done exactly nothing in three years besides issue mandatory reports to congress. But for spurious efforts to protect “religious freedom” to spread disease during a pandemic, Uncle Bill’s got all the time in the world.

DOJ says to ‘expect action’ next week on social distancing regulation and religious services [CNN]

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

While the legal academy moves overwhelmingly to a mandatory Pass/Fail approach this semester, the public law schools in Georgia continue forging ahead with letter grades despite, from what we hear, the recommendations of faculty and administrators. The root of the problem appears to be the University System of Georgia’s Board of Regents, a group of political appointees taking their cue from the Governor’s Mansion and trying to remain willfully ignorant of the scope of the crisis on the schools they ostensibly run.

For Governor Kemp, it was bending over backward not to learn that the disease was spread by asymptomatic cases, while for the Board of Regents, it’s all about not listening to the academic professionals at the schools about what steps must be taken to put students in the best position to further their careers after this passes. There’s also a petition with over 600 signatures — over half the total number of public law students in the state — asking the Board of Regents to wake up to academic reality.

Word on the street is that the USG claims that Atlanta Biglaw is pushing them to maintain letter grades. The Billable Hour Rules Everything Around Me, indeed. Except this doesn’t really sound plausible. Even if this was true at one point early in the crisis, times change and it’s hard to imagine anyone is adamant about this point now. Firms are laying off their existing staff and campus interviews are getting rescheduled — hiring strategies are going to get a serious reevaluation after all this is over and “Spring 2020 letter grades” are going to be the least of the concerns.

Indeed, supposed Biglaw pressure did not stop Emory from going mandatory Pass/Fail, a move that all but invalidates the USG position — employers are not going to blanket disregard a bunch of Emory applicants in favor of someone from Georgia State with a B+. The path to screwing over law students is in positioning them as outliers compared to their peer candidates.

But USG’s intransigence on the grading question comes with an even dumber twist. Instead of soldiering ahead with the standard curve — a bad enough idea — the schools are allowed to modify the curve, upping it to a 3.7-3.9 based curve. Apparently, in the eyes of the USG, Pass/Fail lacks academic integrity but naked grade inflation doesn’t. So… to serve the needs of employers who claim they need to know where students really stand, they’re going to let people get As who wouldn’t have gotten As? This is just nonsense.

And, yes, adjusting the curve is the best solution available from the perspective of the law schools who are trying to cushion the fallout that months of upheaval will wreak upon exams. But it’s not the ideal solution — shown to us by the wisdom of law school crowds — and it fails to cure the only issue that USG claims to be concerned about.

It’s almost like law schools staffed with professional legal educators should have the authority to set law school policy instead of a bunch of bankers beholden to Georgia politicians.

Weird.

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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.

Law firms are being forced to adapt at an unprecedented pace to the unfolding global pandemic. Traditionally, firms were deliberate and late to respond to change, whether it be technological innovation or shifting market conditions. Today, however, law firms have no choice but to reprioritize and reconfigure their workflows and client relationships due to the COVID-19 outbreak. Further, there is a heightened imperative to honestly communicate and manage the expectations of the firms’ partnership and staff.

We want to get a sense of how associates are perceiving their firms’ responses to our current circumstances.  In partnership with our friends at Major Lindsey & Africa, we are fielding a brief survey that looks to gain insight into such topics as:

• Communications transparency;
• Technological resources;
• Preferred methods of communication; and
• Long-term effects on the profession.

The question of how, exactly, law firms should deal with the economic uncertainty surrounding COVID-19 remains an active one. While we’ve seen a range of responses from Biglaw, from layoffs, to furloughs, and associate salary cuts, one of the more vexing question remains what to do with staff who are dependent on physical locations to do their job and cannot work from home.

Sheppard Mullin, currently clocking in at 56th in the Am Law 200 ranking, just announced furloughs for a small amount of their staff. Those impacted are those that cannot work from home, and, in a statement from the firm, they’ve revealed staff members will continue to have medical benefits and will receive a bridge fund grant (funded by partners’ personal funds):

Sheppard Mullin today furloughed 33 of our 823 staff. We furloughed these team members because they cannot perform their jobs (such as receptionists, support services and file center employees) from home. These personnel have been on payroll through the four weeks of our Work From Home program. They have been told to expect to return to work in 60-90 days. Given the levels of unemployment insurance available, none of those furloughed will experience reduced compensation. During the furlough, Sheppard Mullin will pay for full medical benefits and will not require the furloughed employees to contribute to the insurance costs. In addition, because of the lag time between when an employee is furloughed and when unemployment benefits are received, partners and senior management have contributed personal funds to create a Bridge Fund to provide full equivalent take-home pay during the wait. These bridge funds are a grant, not a loan, and will not be paid back.

And that’s it for austerity measures, at least for now. The firm says while layoffs are off the table, pay cuts or other measures haven’t been decided. The firm statement goes on:

Aside from the furlough of these staff members, we have made no other decisions regarding additional furloughs or a reduction in hours or compensation. We have no intention of doing any layoffs. Our goal is to treat all of the Sheppard Mullin family fairly and with consideration, while making sure we remain a strong firm.

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

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.

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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).

We look forward to welcoming our newest colleagues to the firm. We are confident that, together, we will be able to meet the challenge of the months ahead and hold a Summer Program and a 1L Fellowship Program, in whatever form those programs take, that are rewarding, successful, and engaging.

— Abid Qureshi, chair of Latham’s global recruiting committee, in a statement given as to the status of the firm’s incoming summer associate class. Latham still plans to hold its annual program, but the form it will take remains up in the air. The firm remains fully financially committed to all of its summer associates.

(Recall that in 2009, during the height of the Great Recession, Latham laid off 440 employees — 190 associates, 250 staff — in a single day. From then on, “Lathamed” became slang for getting laid off.)

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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.

“Soon we’ll be living on basic income and just podcasting at each other all day.”

That prediction, delivered two weeks ago by lawyer and writer Mike Whelan on Twitter, was no doubt tongue-in-cheek. But now, it is also seeming prescient, as a cooped-up community of legal professionals with new-found time on their hands launch ever-more and ever-more-frequent podcasts.

The most telling evidence of this is that, in the space of three weeks, we have gone from zero daily legal podcasts to three daily legal podcasts.

Of this new crop of daily podcasts, Greg Lambert, already a podcaster with his and Marlene Gebauer’s show The Geek in Review, was the first to make the most of his sheltering in place by launching a podcast about — what else — sheltering in place and working from home. Started March 22, Lambert calls it In Seclusion.

Two days later, on March 24, and just a day after he recorded an episode of my LawNext podcast, Jack Newton, cofounder and CEO of practice management company Clio, launched Daily Matters, a podcast (with video) devoted to exploring the new normal for law firms.

Not to be outdone, Laurence Colletti, executive producer of the Legal Talk Network, apparently not content with being holed up in sunny San Diego, launched his own “dailyish” podcast, Legal Talk Today, featuring short episodes covering essential legal issues.

I’m not one to talk, as I recently launched a second podcast, Legaltech Week. But, honestly, I’d been thinking about this before the pandemic hit. Like my other podcast, it is weekly, not daily, and I am trying to keep each episode mercifully short at 15 minutes or less.

And I also should acknowledge that I have blood in the game, so to speak, insofar as my son Ben Ambrogi, the producer of my shows, has now formally launched Populus Radio, a company that is in the business of producing podcasts.

But it does sometimes seem that we are getting to the point where having a podcast is de rigueur.

For instance, when Dan Lear, former director of industry relations for Avvo, announced last week that he was taking a leadership role with epayment company Gravity Legal, the announcement came with the news that he would also launch a podcast related to the role, Financially Legal.

It is difficult to know just how many law-related podcasts there are these days. But here is the irony: Even as sheltering in place gives us all more time to make podcasts, there are indications that people are spending less time listening to them.

I conducted my own Twitter poll on this question. I asked whether sheltering in place had caused to people to listen to more or fewer podcasts. Fifty-six percent said they are listening less, and 22.5 percent said they are listening more.

The company Podtrac, which tracks podcast downloads and audience growth, found that both were down starting from March 9. Podcast downloads decreased 1% the week of March 30-April 5, 4% the week of March 23-29, 2% the week of March 16-22, and 1% during the week of March 9-15, across all its measured podcasts.

Audience also decreased over most of that same period, decreasing 5% the week of March 23-29, 8% the week of March 16-22, and 2% the week of March 9-15. Audience rose by 1% for the week of March 30-April 5.

Worth noting, however, is that even with these recent drops, Podtrac says that podcast downloads have grown by 24% and audience has grown by 9% since the start of the year.

Does this plethora of podcasts mean listeners will lose interest or that the field will be glutted?

This was a question that was also often asked in the early days of blogging, as the number of legal blogs grew from a dozen or two to hundreds and then to thousands.

My answer for podcasts is the same as it was for blogs. If you create content that is of consistently good quality and of interest to your intended audience, the readers or listeners will come.

In fact, in this time of seclusion, podcasts may be more relevant than ever. They connect us not just through words, as on a printed page, but also through the sounds of the voices that speak those words, creating a kind of intimacy that only audio can.

For me, this was most striking during my LawNext interview this week with David Lat, the founder of Above the Law, about his battle with COVID-19 and his 17-day hospitalization. His voice, still hoarse from intubation, conveyed the pain and emotion of his experience in a way his written words never could.

So are we all destined to be podcasters now? Maybe. And maybe it wouldn’t be the worse thing that could happen.

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Robert Ambrogi is a Massachusetts lawyer and journalist who has been covering legal technology and the web for more than 20 years, primarily through his blog LawSites.com. Former editor-in-chief of several legal newspapers, he is a fellow of the College of Law Practice Management and an inaugural Fastcase 50 honoree. He can be reached by email at ambrogi@gmail.com, and you can follow him on Twitter (@BobAmbrogi).

As quarantine circumstances go, Neel Kashkari’s got it pretty good. The Minneapolis Fed president isn’t in a COVID-19 hotspot, has plenty of room to socially distance and mountain bike at his rustic northern lodge, enjoys the company of two extremely large dogs to stave off loneliness, and has plenty of cheap beer and seasoned wood (and, presumably, Gilette Fusion razors) to keep himself warm (and bald) for however long this lasts. And that’s good, because the most interesting man in central banking thinks this is going to last for a long time.

Professor Stephen Bainbridge is quick to point out that he’s “no Darth Vader” when it comes to internal Federalist Society politics, but the UCLA professor is still eager to pass along some of the worst ideas circulating. So maybe it’s more fair to cast him as the Kylo Ren of this operation — just out in Darth Vader cosplay taking all the wrong lessons from Vader’s arc.

As with everything these days, this is a tale about COVID-19, a subject where a Corporations professor is decidedly not an expert. But he’s got takes!

Dude, he can’t even get the animals right. While the “bat” still enjoys a lot of play in the right-wing echo chamber, the prevailing wisdom is that it was pangolin consumption that carried the disease to humans. Regardless of the specific animal, despite the fervent desire among the American right-wing to construct the pandemic as the result of “backward” cultural forces in China, most Chinese citizens are already in favor of regulating or banning this practice and far from a “traditionalist” practice, the market for these goods suggest that wildlife consumption is increasingly the domain of the upwardly mobile classes flaunting wealth. In a sense, it’s not too different from the American hunting culture where it’s the wealth management VPs dressing in designer camo to take down walking venison steaks.

While trafficking in “oooh, they eat wild animals” tropes may conveniently distract from the role economic liberalization and a dangerous commitment to small government and slashed public health expenditures played in all this, it’s not particularly informative except as a means of scapegoating an other for eating “the bad wild animals” as opposed to Americans who eat “the good wild animals.” Which are good animals because we kill them with our constitutional rights, obviously.

But he thought Twitter might be a good place to muse that his Chinese students may have given him COVID-19:

No one else at the school got sick, but he still thought despite this that it was worthy of posting to a public forum that one of his Chinese students might have given him the virus. Let that sink in. As a matter of professional judgment, he thought it was a good idea to suggest that students at the school were spreading the disease even though he had no evidence to support this claim and, admittedly, compelling evidence that it wasn’t true.

Except they were Chinese, so… here we are.

As he maintains, Bainbridge is no Darth Vader. He didn’t come up with this xenophobic shorthand. He just passes it along through his feed. But it’s almost as if the original source of the bad idea isn’t as troubling as those who choose to continue spreading it without thinking about it. If only there were some sort of scientific corollary to someone acting as a vector to spread something so we could see how repeating bad ideas is as problematic as being the original source.

Barring that sort of instructive analogy, maybe just don’t go around Tweeting accusations about students.

Blaming China for coronavirus isn’t just dangerous. It misses the point [The Guardian]

Earlier: Law School Profs Throw Fit On Twitter Over Having To Answer Basic Reporter Questions

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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.