Author: TSA Press

According to 2019 Biglaw data collected by ALM, what Biglaw firm saw attorneys bill fewer hours in 2019 over 2018 (to the tune of almost 8 percent)?

Hint: Despite this, the New York-based law firm that was founded in 1873 saw increases in both their revenue and profits per equity partner in 2019. A senior partner of the firm said they are pivoting to more profitable areas and the revenue gain was achieved through higher realization.

See the answer on the next page.

Last week I had the distinct pleasure of presenting at two different conferences while in Chicago: ABA TECHSHOW 2020 and The 2020 Women of Legal Tech Summit.

At TECHSHOW I spoke twice about two topics that fell well within my wheelhouse. My first talk (with my  co-presenter Jim Calloway) was focused on cloud computing for lawyers, and my second presentation (with co-presenter Maria Phillips) addressed the cybersecurity risks — including phishing and malware — that law firms face in 2020.

But it’s my presentation at the Women of Legal Tech Summit that is the focus of today’s column. At that conference I spoke about a subject that diverged significantly from my usual talks on how and why lawyers should use legal technology. Because the goal of the Summit was to close the gender gap in legal tech, my presentation’s objective was to find a way to amplify the voices of women in legal tech.

It is my hope that sharing my ideas in today’s column will help to spread the word, create a tribe of women in legal tech, and perhaps even create a movement to encourage others to share the messages of women in legal tech and support their efforts to change legal tech for the better.

When I began to create my slide deck, my end goal was to come up with a dog whistle, if you will, that would be a call to action to those seeking to support women in legal tech online. But before sharing my plan for accomplishing this, I have to first set the stage.

As I explained in my talk, women in legal tech sometimes encounter difficulties online, for a number of reasons, when it comes to amplifying their voices. For starters, many women in legal tech not only work but also manage their families’ lives. Some have caregiving responsibilities as well.

This means that professional networking and more traditional socializing — both online and off — often fall by the wayside, since something has to give. That may not be the case for every woman, but that’s always been the case for me. And from anecdotal experience  over the years, I’ve learned that it’s the case for many other women as well.

Because networking isn’t always a top priority for many women, they’re often left out of various online (and offline) “boys’ clubs.” The end result is many informal online legal tech networks that formed organically within a social media platform often tend to be made up mostly of men. These groups often primarily amplify only the voices of those who are part of the loosely formed online network. As a result, the voices of women in legal tech are sometimes inadvertently left out of the mix.

To solve this problem, I’ve proposed a hashtag that women in legal tech can use when they share something online that they wanted to amplify. This would help to create an online “tribe” of women on legal tech, and the hashtag itself would be a call to action of sorts. By using the hashtag, women would be asking their tribe and those seeking to support their message to retweet or share their post. This would make it easy for women in legal tech to support each other and for others who seek to support women in legal tech to amplify the messages of women in legal tech by sharing the messages with their respective online networks.

Notably, there is already a hashtag often used to identify women in legal tech: #womenoflegaltech. But in my experience, it’s typically used to highlight an accomplishment of a woman in legal tech by someone other than that woman. And it’s not a call to action; instead it’s simply a hashtag that acts as a classification of sorts. And to further confuse matters, a very similar hashtag, #womeninlegaltech, is often used for the same purpose.

So I decided to come up with a different call-to-action hashtag. As you can see from the slides in my deck below, I considered a few options. The first hashtag that I came up with, and then dismissed for the reasons discussed above, was #womeninlegaltech. I also rejected #legaltechXX for any number of reasons, not the least of which was the likelihood that it could be subject to … unintended misinterpretations.

I finally settled on #legaltechX2 because it represented a mathematical concept that embodied amplification, which was the very reason I sought to create this hashtag in the first place.

So how do I envision this working?

• Step 1:  Use the hashtag. Women in legal tech and their supporters  should use this hashtag whenever they’d like to call on their tribe to widely share particular social media post.
• Step 2: Follow the hashtag. If you’d like to support women in legal tech, follow the hashtag by running daily searches for it on your social media platforms of choice, or by creating a column on Tweetdeck or Hootsuite for this hashtag search.
• Step 3: Amplify the message: Retweet or share all posts that use this hashtag. This way the voices of women in legal tech are amplified far beyond their respective networks.

So that’s my proposal. Let’s start using the hashtag #legaltechX2 and see what happens when more diverse perspectives are added to online legal tech conversations!

It’s now commonly understood that cyber threat actors — both criminals and nation-states — target and infiltrate law firms due to a high concentration of sensitive client data. But what happens when a prominent political asylum client warns you to batten up the cyber hatches, you agree to take special precautions to prevent disclosures of confidential information, and then after being engaged, you don’t? Hint: a panoply of finger-pointing and a growing comprehension within the legal community that cyber vigilance is the new normal.

Chinese tycoon and self-exiled political dissident Guo Wengui sued law firm Clark Hill for malpractice, breach of contract, and breach of fiduciary duty based on a fact pattern which implicates a targeted hack of the firm by the Chinese government.

While the DC District Court recently determined to dismiss Wengui’s demand for punitive damages and his claims that the firm’s subsequent withdrawal from the case constituted a legal remediable wrong (as is required to proceed with a tort claim) in a February 20, 2020, ruling, the claims around the firm’s misrepresentations around securing his confidential information and the mishandling of such information are proceeding to trial.

From a security practitioner’s point of view, it’s an interesting case.  Unpeeling the layers around Wengui and his climb to the being the 73rd-richest person in China based on his trajectory in successfully developing real estate and investments in mainland China provides an interesting backdrop, and it is exceedingly fair to state that Wengui is no stranger to litigation, as either defendant or plaintiff.

Wengui is a colorful figure within social media outlets, outspoken on his views of the Chinese Communist Party (CCP), and has been the subject of extensive misinformation campaigns by the Chinese government. According to Wikipedia, a South China Morning Post report found that more than 38,000 tweets from 618 of the now-suspended Twitter accounts controlled by the Chinese government and disseminating information around protesters in the 2019 Hong Kong Anti-Extradition Riots targeted Wengui.

Prior to engagement, Wengui’s warnings to the firm about the requisite level of security were explicit. As a political dissident residing in New York since 2015 when he fled China, he claimed he had already experienced the reach of the CCP when protesters demonstrated outside his US home and the government subjected him to targeted cyber attacks. He told Clark Hill they should similarly “expect to be subjected to sophisticated cyber attacks” upon engagement. Clark Hill agreed to take “special precautions” to prevent his information from leaking, including not placing any of his information on the firm’s server.

Post-engagement, the firm was hacked, and Wengui and his wife’s personal information (including passport numbers) was exposed along with the asylum application itself, which was published on social media. There seems to be no dispute as to the source of the hacking –- both parties implicitly understanding it was the CCP –- and the hack is described to have been executed “with no great difficulty.”

Say What You Do And Do What You Say

In dismissing Clark Hill’s motion for dismissal of the breach of fiduciary duty, the district court noted that Wengui sufficiently demonstrated the breach of duty of loyalty and good faith in misrepresenting how they would protect his confidential information. Similarly, the court declined to dismiss the legal malpractice claim citing the duty of reasonable care owed by attorneys to their clients.

While speculative, there is little doubt that all parties were well-intentioned in the engagement. It’s also clear that this litigation is ongoing and still could go in many directions until resolved. But a few questions and some lessons to pick through are here for those of us who are tracking the evolution of cybersecurity standards through the legal industry.

First, how will the court’s ultimate findings affect an insurance carrier’s willingness to pay out on a claim originating from a law firm under these circumstances? Second, what is the reasonable standard of cyber care required when firms represent political targets of the CCP, and hold their most personal information from nation states?

On the flip side, from the security side of the house, many law firms pride themselves on staying on the cutting edge of cyber –- whether running their network environment through rigorous external or collaborative testing or paying outside experts to come in to test their physical perimeters on a regular schedule. For them, security is viewed as a differentiator and the tip of the spear. Indeed, for most law firms who offer a cyber practice, it would be hypocritical to claim to be well positioned to provide counsel on cybersecurity, privacy law, and trade secret protection, but not also walk the walk.

At the end of the day, it’s not just political asylum seekers who need best-in-class protection. In a world where literally anyone can be extorted, doxed or profited from, the individual client all the way over to the companies who are on the precipice of SEC filings deserve a hardened-down environment and best practices within which cybersecurity is an active defense that is not an endpoint but journeys in parallel to their adversaries.

And, if there is a lesson in this for us that harkens back to law school even, perhaps it’s just this for now: listen to your clients. And when your clients are concerned about digital security because they are legitimately a public target of a nation-state known for its offensive cyberattack capabilities, that’s all the more reason to lean in.

---

Jennifer DeTrani is General Counsel and EVP of Nisos, a technology-enabled cybersecurity firm.  She co-founded a secure messaging platform, Wickr, where she served as General Counsel for five years.  You can connect with Jennifer on Wickr (dtrain), LinkedIn or by email at dtrain@nisos.com.

This is top of mind for clients across the board. From what we are seeing, this is not a short-term issue. It’s still unfolding, and we’re still learning about it.

— Alejandro Mayorkas, the leader of WilmerHale’s coronavirus crisis task force, commenting on the fact that clients have sought legal guidance across a variety of practice areas as a result of the coronavirus outbreak. The firm is fielding legal questions from global clients that are concerned about topics ranging from employee safety to supply chain disruption.

---

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.

Here’s your daily reminder, courtesy of U.S. District Judge Steven V. Wilson, that the First Amendment does not apply to corporations.

The presidential campaign for Hawaii Rep. Tulsi Gabbard (D-Fantasyland) sued Google in July for temporarily suspending its Google Ads account for a few hours after the June 26-27 debates, a “restraint that had been placed on Tulsi’s speech—at precisely the moment when everyone wanted to hear from her.” The company further suppressed Gabbard’s speech by #Rigging Gmail to send “communications from Tulsi into people’s Spam folders at a disproportionately high rate.” At least according to the complaint filed by her lawyers at Pierce Bainbridge, which also represents the congresswoman in her defamation suit against Hillary Clinton.

Suffice it to say that Judge Wilson of the Central District of California was not impressed. Citing last week’s decision by Judge Lucy Koh of the Northern District of California dropkicking wingnut Dennis Prager’s “First Amendment” suit against Google, the court notes that Gabbard’s claim “runs headfirst into two insurmountable barriers—the First Amendment and Supreme Court precedent.”

“Google is not now, nor (to the Court’s knowledge) has it ever been, an arm of the United States government,” Judge Wilson writes with barely concealed contempt, citing the 2019 SCOTUS holding in Manhattan Cmty. Access Corp. v. Halleck, affirming that “the Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech.”

And NO, hosting campaign ads doesn’t magically transform Google into a government actor. By that tortured logic, every media outlet and website in the country becomes a state agent.

Nor was the court persuaded by Gabbard’s reasoning that Google’s efforts to protect itself from cyber-intrusion implicate “national security,” thus constituting state action for the purposes of the First Amendment.

Plaintiff’s “national security” argument similarly fails. Google protects itself from foreign interference; it does not act as an agent of the United States. Nearly every media or technology company has some form of cybersecurity procedure. Under Plaintiff’s theory, every media organization that took steps to prevent foreign cybercrimes could potentially implicate the First Amendment.

Gabbard’s suit is “dismissed with prejudice” and, for good measure, in case her illustrious counsel is feeling as creative about civil procedure as they are about the First Amendment, “without leave to amend.”

Anyone else getting the impression that federal judges are getting pretty tired of these bullshit fundraising campaigns disguised as defamation suits and First Amendment suits clogging up their dockets? Devin Nunes, take note!

Tulsi Now, Inc. v. Google, LLC et al., Order Granting Motion to Dismiss [2:19-cv-06444-SVW (C. D. Cal., March 3, 2020)]

---

Elizabeth Dye lives in Baltimore where she writes about law and politics.

Flexible work arrangements are increasingly changing the face of the legal industry. Paragon Legal is one of the companies leading that charge as an innovative legal services firm that provides highly skilled and experienced in-house counsel to corporate legal departments on an as-needed basis. For almost 15 years, law departments have partnered with Paragon to remain nimble and have flexibility to ramp up and down as their business needs and budgets demand. Paragon has built a unique model and culture that attracts the best legal talent by offering challenging legal work, competitive compensation, and flexibility.

We recently sat down with Mae O’Malley, the founder and former managing attorney of Paragon Legal, to discuss why she started the company in 2006, what has led to its success, and what differentiates it from other competitors in the market.

What inspired you to start Paragon Legal and what were your goals for the company?

The very beginnings of Paragon came completely out of my own personal necessity to find a way to continue to practice law while spending meaningful time with my growing family. At the time that I started Paragon, I was coming off of an in-house job and had just had my third child so was looking for flexible work opportunities. I took a part-time job in-house at Google and needed someone to help me with the personal clients I had gathered over the years because I didn’t want to give them up.

I posted a project-based job ad to the Burlingame moms’ club thinking this would be a good opportunity for another mom, and I ended up getting a man who was looking for flexibility in his schedule because he was an avid scuba diver and wanted to be able to take significant time off during the year. When Google got wind of the flexible working model I had come up with, they asked if I could supply them with more attorneys. From there it grew quickly — both clients and attorneys wanted in — and I had to come up with a name overnight! The model quickly proved to be a great fit for people who wanted to have a meaningful practice but have flexibility at the same time. 

Were there any key decisions or growing pains early on that in hindsight helped you build a successful company?

One thing I intentionally did from the beginning that I think was extremely beneficial was that I wanted to stay very focused on doing only high-end legal work. So when we started Paragon, we hired senior attorneys with at least 10 years of experience, and most had much more than that. To this day, that high-end work continues to be our bread and butter. Other similar companies over the years have tried to expand business lines to cover all kinds of different things and I think they’ve found themselves somewhat stretched to try to do it all while keeping their core business strong. We avoided that temptation. 

As we grew, our marquee client base started to ask for paralegals and contract managers, so we added those offerings, but still at a senior level, which was a very good move for us. It’s important to stay very focused in the early days on your core business and build it up to a point where it’s strong, and then start to think about expanding in other ways based on what your clients are telling you they need.

Another thing we were forced to figure out early on was how to evolve our model to balance the needs of our attorneys for steady income against the needs of the clients to only pay for what they need. We ended up coming up with a very unique model where our attorneys are guaranteed an amount of work that aligns with what our clients need. Now our attorneys have predictability in their hours and steady income, while our clients have visibility into what they’re getting and what they’re paying for.

What distinguishes Paragon from other products or other platforms on the market?

Something that distinguishes us not only from our competitors but from a lot of companies in general is that we’re very employee-centric. We started with the notion of wanting to make sure that our attorneys felt taken care of and valued, knowing that if they were treated well, they would in turn do really good work. That allowed me to run the company until I sold it with almost no investment in marketing, because our marketing was the good work of our attorneys. We thrived on repeat business and client referrals, and Paragon attorneys have always had very high levels of satisfaction because they’ve felt valued. We really wanted this to feel like a career path as opposed to a gig-economy situation.

Why did you decide to sell the company in 2018?

As is true with so many startups, you reach a point where it’s very clear that your potential to grow and to be all that you can be starts to become limited by the type of management you have in place. It’s so often the case that eventually the founder is no longer the best person to be running the company, whether due to skillset or goals or vision. Before 2018, Paragon had reached the point where it could really benefit from bringing in new management that had both the desire and the bandwidth to look at ways to scale the company.

It was a decision between being satisfied growing very organically and gradually, or investing in new management that could really test the ability of the company to expand and to potentially go national or international in a way that we very much feel the brand can sustain.

We’d had many people, including most of our competitors, try to acquire us from about 2008 on. But I never reached a point until 2018 where I felt that I was ready to sell the company, because I was still invested in it and hadn’t found the right people to pass it on to. I was very concerned about preserving the culture. We were very attorney-centric and had an all-female management team at that time, which was something that I was sensitive about. 

I’d been advised by a number of friends who had sold companies that when the time was right, it would just feel right. And it did. When Trista and Jessica came along in early 2017, they were the first women who had ever approached me about buying the company. I thought they had really great ideas for a thoughtful and measured ramp up of the company, and their energy and their vision for the company felt right from the very beginning. I also thought they were well positioned to really understand the experiences and the needs of our workforce, and to continue the culture that made Paragon special.

Can you give us your thoughts on work/life balance and how Paragon plays into that?

We have all sorts of attorneys who are attracted to the Paragon model. We have both men and women who, for instance, are very involved in their local politics or are writing books. We had a movie producer/screenwriter who had a very successful run with us. Whatever it might be, you’ll find that the vast majority of human beings have interests outside of their jobs and outside of the law. Most traditional law jobs, whether in-house or at firms, are 60-plus hour a week jobs, which doesn’t allow for flexibility for either other life interests or spending meaningful time with family.

So I think that there was, and there continues to be, a huge need for models like Paragon’s that provide some small level of flexibility to attorneys who want to continue a meaningful practice but have other things outside of the law that they’re interested in. At Paragon, there’s flexibility in terms of hours, start and end times with clients, and other things that make life easier. In my mind, these are all extremely simple things to ask for, but are unfortunately very hard to attain in corporate America. You just need to build them in from the beginning as the conversation with the client starts, and everyone will be happy.

***

Paragon Legal has carved out a niche for itself, creating a flexible work environment for experienced attorneys, paralegals, and contract managers who not only love to do meaningful work, but also crave flexibility and balance in their professional lives. With a workforce as exceptional as the company itself, we can’t wait to see what the future holds for Paragon. Click here to find out more information about current opportunities for attorneys.

The Florida Supreme Court has asked The Florida Bar to undertake a study of the rules governing the practice of law in order to determine whether revisions are needed to improve the delivery of legal services within that state.

In so doing, Florida joins a growing number of states — including Arizona, California, New Mexico, Oregon, Utah and Washington — that are studying changes in lawyer regulation with the goal of enhancing access to justice.

The Supreme Court directed the committee to look into the topics of lawyer advertising, referral fees, fee splitting, entity regulation, regulation of online service providers, and regulation of nonlawyer providers of limited legal services.

The court’s request came in a Nov. 6, 2019, letter to John M. Stewart, president of The Florida Bar, in response to an earlier letter from him suggesting such a study. The court’s letter, signed by Chief Justice Charles T. Canady, said:

“As discussed in your letter, the environment in which legal services are provided has been rapidly changing. In view of that changing environment, the challenges facing Florida lawyers, and the difficulties that many Floridians encounter in securing legal services, the Court agrees that The Florida Bar should conduct a study of the rules governing the practice of law to ensure that our regulation meets the needs of Floridians for legal services while also protecting against misconduct and maintaining the strength of Florida’s legal profession.”

The court asked Stewart to chair the study group and appoint its members. The letter asked that the study group complete its work and submit a final report by July 1, 2021.

The letter went on to say:

“In fulfilling the Court’s responsibility under Article V, section 15 of the Florida Constitution ‘to regulate … the discipline of persons admitted’ ‘to the practice of law,’ we are committed to ensuring a strong and vibrant Bar to meet the legal needs of the people of Florida and to enforcing appropriate ethical standards for Florida lawyers. The foundation of our efforts in this arena is the recognition that The Florida Bar exists to serve the people of our state. We believe that the study we are asking the Bar to undertake can assist us in carrying out this important constitutional responsibility.”

Last month, the American Bar Association approved a resolution calling on states to consider innovative approaches to the access-to-justice crisis and, in particular, to consider regulatory innovations that could improve the accessibility, affordability and quality of civil legal services.

Full text of Supreme Court’s letter to Stewart.

As COVID-19 continues to spread, firms are taking the sort of proactive measures to ensure the safety of employees that the federal government eschews in favor of praying about it. The latest move in the effort to address the spread of the disease comes from Debevoise, who announced the suspension of all “non-essential international business travel.”

The policy excepts only trips approved by senior firm leadership, so your team had better feel pretty confident about that trip before you bug the management.

Effective immediately, the firm is suspending all non-essential international business travel. For any international business travel to be considered essential, it must be approved in advance by me (for lawyers in New York), Arthur Armstrong (for administrative staff in New York), or your Managing Partner (for offices outside New York). Subject to the below, domestic business travel is not affected by this policy.

While the policy allows most domestic travel, the firm isn’t interested in putting employees in contact with large groups of people:

Also effective immediately, the firm is suspending all travel (international and domestic) for conference attendance, including conferences at which our personnel are scheduled to speak. Exceptions to this policy must be approved by me (for lawyers in New York), Arthur Armstrong (for administrative staff in New York), or your Managing Partner (for offices outside New York).

Personal travel is still not regulated by the firm, but management is requiring notification for travel to afflicted countries and a self-quarantine whenever folks return:

We will continue to leave to individuals the decision concerning whether to travel for personal reasons. If you do travel for personal reasons, however, that travel will still be subject to the policy announced on March 2: “You must continue to notify the Managing Partner in your office (or me, if you are in New York) if you intend to travel to any of the following: China, South Korea, Japan, Taiwan, the Philippines, Hong Kong, Macau, Myanmar, Vietnam, Cambodia, Laos, Thailand, Malaysia, Singapore, Indonesia, Italy and Iran. Please note that if you travel to any of these countries or regions – even if only to transit through an airport located in one of these countries or regions on your way to/from another destination – we are likely to ask you to stay out of the office and work remotely for 14 days after your last presence in the country or region in question. Assuming you exhibit no symptoms of COVID-19 at the end of that fourteen day period, you may return to the office.”

If health policies are anything like bonuses — and we suspect they’re everything like bonuses — expect the rest of the Biglaw elite to quickly follow suit.

And then expect Cravath to go over the top.

Earlier: Previous Above the Law coverage of coronavirus

---

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.

During a time when health and wellness have finally been taken off the legal profession’s backburner, many firms are trying to help lawyers come to grips with mental health. Lawyers are more likely to suffer from depression than any other profession, but they often suffer in silence for fear of alerting their colleagues about their mental health disabilities and being stigmatized for the rest of their careers. One firm is trying to put a stop to that.

In a partnership between its Wellness Works initiative and its Mental Health Task Force, Reed Smith recently launched the #stopthestigma campaign, with the goal of helping lawyers get the assistance that they need without fear of any career repercussions. The American Lawyer has the details:

Campaign events and activities include:

• An educational program Wednesday led by Mettie Spiess, a certified psychological health and safety adviser and founder of A World Without Suicide.
• A video series featuring lawyers and professional staff at the firm and mental health allies sharing their stories.
• A U.S.-wide mental health and safety leadership training session for firm managers.
• “Wear Green Day” on March 19 to raise awareness of the #stopthestigma campaign.
• An educational program March 26 led by Kelly Rentzel, general counsel for Texas Capital Bank, who will share her compelling story of living with bipolar disorder.

March is Mental Wellness Month, and it’s a perfect time to seek treatment if it’s something you’ve been avoiding doing. Stopping the stigma is an extremely worthy cause within the legal profession. Please take care of yourselves and you’ll find that not only is it possible to survive with a mental health setback, it’s possible to thrive.

Reed Smith Launches Mental Health ‘Stop the Stigma’ Campaign [American Lawyer]

---

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.