Nailing The Competition? Trademark Infringement, Keyword Advertising, And A New Take On An Old Problem

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The internet has transformed everything from information access and communication (email, social media, etc.) to shopping, but in the process, it has also pushed the boundaries of trademark law as well. One of the ways this has occurred involves what is known as keyword advertising — a form of online advertising whereby the advertiser pays to have an advertisement appear in a search results listing when specific words or phrases are used in the search. It makes sense that advertisers would want to use such a mechanism — it gets their brand in front of consumers who are searching for such goods or services right then and there.  When the search terms bid on by advertisers involve the trademarks of another party (especially a competitor), however, things get a bit harder to nail down, and trademark owners have been none too happy about it.

As you can appreciate, trademark owners did not take too kindly to the use of their trademarks by search engine programs in keyword advertising, and they have sued not only the search engines selling search terms incorporating their trademarks but the advertisers who have purchased such keywords as well.  The problem is that the courts have not really sided with the trademark owners in such keyword cases.  Why?  It really comes down to likelihood of confusion — whether an ordinary consumer shopping online would be likely to be confused as to the source of origin of the goods from the keyword-served advertisement. From trademarks involving contact lenses to software, the circuit courts have generally held no likelihood of confusion over ads generated from keyword advertising based on another’s trademarks.  That said, likelihood of confusion can occur under certain circumstances where trademarks are used in other contexts as well as in keywords, such as in advertisement text or domain names. I fully realize that this scratches the surface as a summary of the law in the area, but the point is that trademark infringement involving keyword advertising is not an easy nail to drive so to speak, which make the most recent case all the more intriguing.

Many of you have seen ads for personal injury lawyers, but if any of you have spent any time in Texas whatsoever, you have probably seen the ads for Texas personal injury attorney Jim Adler.  Advertising himself as “The Texas Hammer,” as well as “The Hammer” and “El Martillo Tejano,” his ads for personal injury legal services are legend in Texas, and he has become quite well known as a personal injury attorney as a result.   He owns federal trademark registrations for the trademarks “The Texas Hammer,” Reg. No. 3,503,851 and its Spanish translation “El Martillo Tejano,” Reg. No. 3,503,852, both alleging use since 2002, and “The Hammer,” Reg. No. 3,730,395, alleging use since March 2009.  He also has a federal trademark application pending based upon intent-to-use for “The Hammer Lawyer,” Ser. No. 8,8572,196 (collectively, these trademarks are referred to in this article as the “Adler Marks”).  Needless to say, Mr. Adler has spent a great deal of time and money to establish his unique legal services brand under the Adler Marks, so it should come as no surprise to see lawsuits filed on behalf of his law firm and himself in the U.S. District Court for the Northern District of Texas against four different defendants alleging trademark infringement for use of his trademarks in keyword advertising on mobile devices.

Unlike other cases, the facts underlying these near-identical complaints appear to go beyond mere comparative advertising.  Here is an excerpt from the Statement of the Case in one of the cases, Jim S. Adler, P.C. and Jim Adler v. Alliance Industry Group, et als., Civil Action No. 3:19-cv-2023, that outlines the allegations succinctly:

This lawsuit arises out of Defendants’ intentional use of Plaintiffs’ registered trademarks to knowingly deceive and confuse consumers who are searching specifically for Plaintiffs using a mobile device. Defendants’ fraudulent scheme involves buying keyword ads using Plaintiffs’ registered marks for Google searches made from mobile devices, and using them in conjunction with confusingly similar or generic “click-to-call” ads. “Click-to-call” ads are a relatively new tool for search engine advertising. The “click-to-call” ads target mobile devices and users, and instead of linking to a website, once tapped by a consumer, the ad causes the device to call a predetermined phone number.

The complaint goes into greater detail involving the allegations, but the gist is that the defendants operate legal referral services that use call centers to refer cases called in to the call center to law firms/lawyers with whom they have a legal relationship (such as a referral agreement).  By purchasing keywords including the Adler Marks, the complaints allege that the competing “click-to-call” ads on mobile devices can cause confusion to the consumer doing the search, not realizing that the number they are clicking to call on their mobile device is not Mr. Adler’s law firm. In essence, the complaints allege that the defendants are trading upon the goodwill behind the Adler Marks (as well as Mr. Adler’s reputation) to ostensibly induce calls to their call centers.  In addition, the complaints allege that the defendants’ practice is bidding-up the cost for the Adler Marks’ fun keyword advertising, resulting in Mr. Adler’s law firm apparently getting “hammered” itself by increased costs for its own internet advertising.  Ouch.

As you can see, these cases involve more than just simple keyword ad servicing — they are specific to the use of trademarks in keyword advertising on mobile devices to allegedly confuse consumers seeking a personal injury lawyer into calling a competing lawyer on their mobile device. It will be interesting to see how the plaintiffs overcome the hurdles presented by existing caselaw on likelihood of confusion, given that the ads generated by the defendants appear general to personal injury legal services for vehicle accidents and do not use the Adler Marks within them.  How these cases will turn out is anyone’s guess, but existing caselaw is not necessarily on Mr. Adler’s side.  That said, the facts alleged involve more than your typical trademark infringement/keyword advertising case, and the nature of the “click-to-call” ads may be enough to tilt the issues presented in his favor.  These cases are definitely worth watching.  You never know — when it comes to evolving the law regarding trademark infringement in keyword advertising on mobile devices, these cases may just hit the nail on the head.

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.

Zimbabwe begins national mourning for hero-turned-despot Mugabe – The Zimbabwean

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Zimbabwe was on Saturday due to begin a period of national mourning following the death of Robert Mugabe, the former guerrilla hero turned despot who ruled Zimbabwe for 37 years.

As Zimbabweans expressed sharply divided opinions about Mugabe, President Emmerson Mnangagwa said his predecessor had been declared a “national hero” and that Zimbabwe would mourn him until the burial.

“The late departed icon will be eternally remembered and honoured for the bold and historic land reform programme which he undertook,” said Mnangagwa during a national address broadcast on television.

Mugabe, 95, passed away on Friday at 0240 GMT in Singapore, where he had been hospitalised in April.

First heralded as a liberator who rid the former British colony Rhodesia of white minority rule, Mugabe used repression and fear to govern until he was finally ousted by his previously loyal generals in November 2017.

His increasingly tyrannical leadership and economic mismanagement prompted millions to leave the country.

He had been battling ill health, and after a humiliating fall from office, his stamina seeped away rapidly.

Some Zimbabweans hailed him as a “true African” and a “revolutionary icon”. For others, however, his named evoked only “evil”, “destruction” and “suffering”.

“Mugabe was an educated man but he used his education for evil,” said Baster Magwizi, a war veteran in the southwestern city of Bulawayo.

“He manipulated everyone around him and fooled the world, only Zimbabweans can testify to this as we lived in hell under his leadership,” he said.

But Harare schoolteacher Tatenda Musoni was forgiving.

“To be honest I thought I would celebrate when he died but… I’m actually sad because he was an embodiment of what a true African should be.

“He had his flaws but he did a lot of positive things for us which I doubt we will ever see again in this country.”

Adam Molai, Mugabe’s nephew, said the former president died of old age “surrounded by family”.

Zimbabwe Puts Another Nail In An Increasingly Crowded Keynesian Coffin – The Zimbabwean

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Riot police arrest and forcibly apprehend protestors during protests in Harare, Friday, Aug. 16, 2019. The main opposition Movement For Democratic Change party is holding protests over deteriorating economic conditions in the country as well as to try and force Zimbabwean President Emmerson Mnangagwa to set up a transitional authority to address the crisis and organize credible elections. (AP Photo/Tsvangirayi Mukwazhi)

ASSOCIATED PRESS

Where are the Zimbabweans? According to Financial Times reporter Joseph Cotterill, millions can be found in neighboring South Africa, along with other more economically vibrant locales. Cotterill notes that the Zimbabwean “diaspora” is the result of “decades of turmoil” within the formerly prosperous country.

That more and more Zimbabweans exit their country in order to work rates discussion in consideration of how all too many economists and politicians think of economic growth. According to those with a Keynesian orientation, it’s consumption that powers growth. Others, of the monetarist persuasion, believe that growth in so-called “money supply” is what keeps the economy moving. Neither religion acknowledges that both consumption and money aren’t instigators of growth as much as they’re a consequence of it.

If consumption and soaring money supply were certain growth ingredients, prosperity would be simple. Politicians could demand that the citizenry consume more, and to enable the buying, they would instruct a central monetary authority to boost money in circulation. Of course to anyone with a pulse, such a scenario would fail with blinding speed. Most of us intuitively know that our ability to consume is a function of our ability to produce. To pretend otherwise is the equivalent of assuming the only difference between Lake Forest and Cabrini Green is that government-engineered money supply increases in the former enable greater consumption than takes place in the latter. No, money supply is abundant in Lake Forest, and so is consumption, precisely because the residents of Lake Forest are rather productive. Zimbabwe instructs on the matter.

According to Cotterill, remittances from Zimbabwean expats account for at least $1.9 billion worth of GDP, or 9.6 percent. Zimbabweans are able to consume more and more thanks to production of Zimbabweans not working in Zimbabwe. This is an important distinction to make. Paul Krugman argues endlessly for increased government spending to boost economic growth, but does so without acknowledging that the growth already occurred. Governments can only spend insofar as economic growth showers them with revenues to spend. Production first, then the spending.

To Keynesians like Krugman, the answer is always more outlays from politicians. If there’s consumption, prosperity will ensue. Zimbabwe is a reminder of how unrealistic such a belief is. No doubt Zimbabweans are able to consume wealth to a greater degree than they produce wealth, but this ability to buy in greater amounts isn’t thanks to magic; rather it’s a consequence of the productivity of Zimbabweans toiling outside of the country. To be clear, there’s no such thing as consuming. Behind every act of consumption, whether it’s government enabled or enabled through remittances, is an act of production first.

Readers might consider the above the next time they witness some economist or politician on TV talking about boosting the economy through more government spending. They’re confused, or they’re lying. They can do no such thing. The consumption they aim to generate through government largesse is only possible insofar as private actors produced the wealth first. Government spending can’t stimulate growth as much as government can arrogate to itself the right to allocate wealth already created; usually at the expense of entrepreneurs and businesses. Never forget that entrepreneurs compete with consumers (private individuals, along with governments that confiscate wealth in order to shift consumption to others) for always limited resources.

Considering money, it too has no use absent production. Money can’t be eaten, or slept with; instead money is just an agreement about value among producers, along with those empowered to consume as producers do thanks to shifts of money. In Zimbabwe’s case, money has use there to a high degree because of production that doesn’t take place there. As Florence Ncube explained it to Cotterill, there “is no food that side,” as in little food produced in Zimbabwe. Groceries are purchased in South Africa, and then sent to Zimbabwe. Money supply can be found in Zimbabwe not because some central bank decreed it, but once again because of production that didn’t place in Zimbabwe. Money earned outside of Zimbabwe, and goods and services produced outside of the country, give money a purpose in Zimbabwe.  Production first, then money supply. Monetarists, like Keynesians, get the drivers of economic growth backwards.

Readers might remember this the next time some wise pundit or economist in a developed country laments impossibilities like “money shortages” or “insufficient money supply” in countries they don’t live in. The reality is that money, like consumption, is a consequence of production. Where there’s production there will always be abundant money to facilitate exchange of it, and where there’s little production is where money will always be scarce. Politicians and central bankers can’t alter economic reality through magic despite what we’re told.

Bringing it back to Zimbabwe, it has neither a problem of insufficient demand nor insufficient money supply as the twin ideologies that are Keynesianism and Monetarism would contend. What really ails Zimbabwe is a lack of production; the latter increasingly being made up for by enterprising Zimbabweans living and working outside their home country.

Zimbabwe begins national mourning for hero-turned-despot Mugabe
Mugabe’s death can be the start of Zimbabwe’s healing process

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Mugabe’s death can be the start of Zimbabwe’s healing process – The Zimbabwean

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‘Mugabe’s legacy will continue to be contested between those who revere him and those who revile him.’ A woman in Harare walks past a wall with ‘Mugabe’ scrawled on it. Photograph: Philimon Bulawayo/Reuters

Zimbabwe’s founding leader, Robert Gabriel Mugabe, has died. The widespread reaction to his death has revealed starkly the divided legacy he leaves behind. From one viewpoint he is Zimbabwe’s founding father, the man who led his comrades through an armed struggle for the liberation of Zimbabwe’s black majority from Rhodesian white-minority rule. His achievements in those early, heady years of independence were exemplary, with emphasis on health, education and women’s empowerment, thus opening up possibilities to many Zimbabweans, particularly the rural poor, who were shut out from Rhodesia’s opportunities.

From another viewpoint, he is the hero who became a villain, his 37-year rule characterised by massive human rights abuses, from the Gukurahundi massacres and persecution of supporters of the rival Zapu party of Joshua Nkomo just after independence, to the persecution of perceived enemies, both in the opposition and within his own party, whom he considered threats to his power. Even the land reform programme, much admired across Africa for restoring land to its rightful owners, was implemented amid chaos and violence.

This reform was meant to empower Zimbabweans, but it also isolated the country and impoverished the very people it was meant to support: swift sanctions soon followed from the west that, together with Mugabe’s own inconsistent economic policies and widespread corruption in his government, plunged the economy into an almost permanent recession for nearly two decades.

Mugabe’s legacy will continue to be contested between those who revere him and those who revile him, but what matters most now is how Zimbabwe’s new president handles that legacy. As Emmerson Mnangagwa prepares to bury his predecessor, he must also bury those aspects of the Mugabe presidency that polarised Zimbabweans, and those policies and attitudes that pauperised this once prosperous nation.

 ‘As Emmerson Mnangagwa prepares to bury his predecessor, he must also bury those aspects of the Mugabe presidency that polarised Zimbabweans.’ Photograph: Tafadzwa Ufumeli/Getty Images

Mnangagwa has promised that his governance will bring a “new dispensation”, and has marked his era as that of the Second Republic. But if he is to avoid the fate of France’s Second Republic, in which the first citizen soon became the third emperor, Mnangagwa must bury the imperial presidency along with Mugabe.

The Gukurahundi massacres remain a sore wound that cannot be ignored. To end the violence, in 1987 Nkomo chose unity and peace over justice and entered into a political alliance with Mugabe. This political fix may have satisfied the establishment, but the wounds of Gukurahundi and other rights violations still fester. In 2018, Mnangagwa appointed a peace and reconciliation commission that before then had existed only in law, but he needs to expedite its work and to guarantee that its recommendations, however far-reaching, will be respected and that it will be transparent and free of political influence.

Burying Mugabe’s legacy also requires Mnangagwa to implement his own election promises. Zimbabwe needs constitutional reforms to make sure that future election results are not contested. Among the most urgent matters are the repeal of the laws that restrict the right to political expression and the freedom of the press. As recently as last month, Mnangagwa stated that these reforms mattered because they were demanded by the constitution and not because they were an external demand linked to sanctions.

A key feature of Mugabe’s rule was the conflation of party with government, and with state. This has meant outrages such as the selective application of the law and the abuse of food aid meant for the poor. Zimbabwe needs to adopt the principle common in advanced democracies that a president governs for his people, not just for his party. In particular, Mnangagwa has promised “zero tolerance” of corruption – but as long as some of his closest allies and top civil servants are shielded from investigation and prosecution, he will be considered no different to Mugabe.

The language of hate was a hallmark of Mugabe’s regime, along with crude propaganda. Particularly when Zimbabweans are suffering, as they have been from austerity measures, the president needs to find words of empathy and inclusiveness.

The one area in which Mnangagwa has shown a marked departure from his predecessor (and in which I was recently an external consultant on investment law policy and promotion) is in his outward-looking foreign policy. He has shown a willingness to open up Zimbabwe to all investors and to re-engage with even those nations with which Zimbabwe had disputes, both over land and over human rights. Yet without addressing corruption, human rights abuses – both past and continuing – and without engaging with compassion the millions of Zimbabweans who feel both disenfranchised and disenchanted, Mnangagwa will not succeed.

The president recently launched Vision 2030, an economic programme that aims to see Zimbabwe become an “upper-middle income economy” by 2030. Significantly, this programme will end after his own term in office, even if he runs again in 2023. If he is to succeed where Mugabe failed, Mnangagwa needs a vision that goes well beyond 2030.

The choice before him is clear: he can be Zimbabwe’s second Mugabe, with the same attitudes and policies, leading his country further down the path to isolation, internal division and economic misery. Or he can be the president who heals Zimbabwe, and puts it back on the path to prosperity and anchors it in real democracy, who guarantees the rights and freedoms of those who disagree with him, and who wins the grudging respect of even his bitterest opponents. As Mnangagwa buries Mugabe, he needs to look beyond the short-term temptations of power and instead focus on how history will remember him.

• Petina Gappah is an international lawyer and author

States pass record number of laws to reel in drug prices – MedCity News

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Whether Congress will act this year to address the affordability of prescription drugs — a high priority among voters — remains uncertain. But states aren’t waiting.

So far this year, 33 states have enacted a record 51 laws to address drug prices, affordability and access. That tops the previous record of 45 laws enacted in 28 states set just last year, according to the National Academy for State Health Policy, a nonprofit advocacy group that develops model legislation and promotes such laws.

Among the new measures are those that authorize importing prescription drugs, screen for excessive price increases by drug companies and establish oversight boards to set the prices states will pay for drugs.

“Legislative activity in this area is escalating,” said Trish Riley, NASHP’s executive director. “This year, some states moved to launch programs that directly impact what they and consumers pay for high-cost drugs.”

And more laws could be coming before year’s end. Of the handful of states still in legislative session — including California, Massachusetts, Michigan, New Jersey, Ohio and Pennsylvania — debate continues on dozens of prescription drug bills. In New Jersey alone, some 20 proposed laws are under consideration.

“Both Democrat and Republican leaders have shown a willingness to pursue strong measures that help consumers but also protect state taxpayer dollars,” said Hemi Tewarson, director of the National Governors Association’s health programs.

Riley, Tewarson and others note, however, that states can go only so far in addressing rising drug prices, and that federal legislation would be necessary to have a major impact on the way the marketplace works.

Federal lawmakers are keeping a close eye on the state initiatives, Tewarson said, to gauge where legislative compromise may lie — even as Congress debates more than a dozen bills that target drug costs. Political divisiveness, a packed congressional schedule and a looming election year could stall momentum at the federal level.

The pharmaceutical industry has opposed most — though not all — state bills, said Priscilla VanderVeer, a spokeswoman for the Pharmaceutical Research and Manufacturers of America, the industry’s main trade group.

“We agree that what consumers now pay for drugs out-of-pocket is a serious problem,” said VanderVeer. “Many states have passed bills that look good on paper but that we don’t believe will save consumers money.”

Limiting Gag Rules For Pharmacists

At least 16 states have enacted 20 laws governing the behavior of pharmacy benefit managers. The so-called PBMs serve as middlemen among drugmakers, insurance companies and pharmacies, largely with pharmaceutical industry support.

Those laws add to the 28 passed in 2018. Most of the new laws ban “gag clauses” that some PBMs impose on pharmacists. The clauses, written into pharmacy contracts, stop pharmacists from discussing with customers whether a drug’s cash price would be lower than its out-of-pocket cost under insurance.

With widespread public outrage over gag clauses pushing states to act, federal lawmakers got the message. In October, Congress passed a federal law banning such clauses in PBM-pharmacy contracts nationwide and under the Medicare Part D prescription drug benefit. The Senate passed it 98-2.

Even so, many of this year’s PBM laws contain additional gag clause limitations that go beyond the 2018 federal law.

Importing Cheaper Drugs

Four states — Colorado, Florida, Maine and Vermont — this year have enacted measures to establish programs to import cheaper prescription drugs from Canada and, in Florida’s case, potentially other countries. Six other states are considering such legislation.

Medicines in Canada and other countries are less expensive because those nations negotiate directly with drugmakers to set prices.

“This is an area where states once feared to tread,” said Jane Horvath, a consultant who has advised Maryland and Oregon, among other states, on prescription drug policy. “Now both Republicans and Democrats view it as a way to infuse more price competition into the marketplace.”

Hurdles remain, however. A 2003 law allows states to import cheaper drugs from Canada but only if the federal Health and Human Services Department approves a state’s plan and certifies its safety. Between 2004 and 2009, the federal government halted nascent drug import efforts in five states.

Even so, momentum for importation has built in recent years in states and Congress as drug prices have continued to rise. And the Trump administration this summer threw its support behind the idea.

Florida Gov. Ron DeSantis, a Republican and close ally of President Donald Trump’s, signed his state’s measure into law on June 11, claiming he did so after Trump personally promised him the White House would back the initiative.

On July 31, HHS announced an “action plan” to “lay the foundation for safe importation of certain prescription drugs.” The plan includes a process to authorize state initiatives. It also requires formal regulatory review, including establishing Food and Drug Administration safety criteria. That process could take up to two years.

Two big problems remain: In the weeks since the announcement, the Canadian government has opposed any plan that would rely solely on Canada as a source of imported drugs. The pharmaceutical industry also opposes the plan.

Creating Drug Affordability Boards

Maryland and Maine enacted laws this year that establish state agencies to review the costs of drugs and take action against those whose price increases exceed a certain threshold.

New Jersey and Massachusetts are debating similar legislation this year.

Maryland’s law establishes a five-member board to review the list prices and costs of drugs purchased by the state and Maryland’s county and local governments. The board will probe drugs that increase in price by $3,000 or more per year and new medicines that enter the market costing $30,000 or more per year or over the course of treatment.

If approved by future legislation, upper payment limits on drugs with excessive price increases or annual costs would take effect in January 2022.

“My constituents have signaled loud and clear that bringing drug prices down is one of their top priorities,” said state Sen. Katherine Klausmeier, a Democrat representing Baltimore, who sponsored the legislation.

Maine’s law also establishes a five-member board. Beginning in 2021, the board will set annual spending targets for drugs purchased by the state and local governments.

Increasing Price Transparency

This year, four states — Colorado, Oregon, Texas and Washington — became the latest to enact laws requiring drug companies to provide information to states and consumers on the list prices of drugs and planned price increases.

The majority of states now have such transparency laws, and most post the data on public websites. The details vary, but all states with such laws seek to identify drugs with price increases above 10% or more a year, and drugs with price increases above set dollar values.

Oregon’s new law, for example, requires manufacturers to notify the state 60 days in advance of any planned increase of 10% or more in the price of brand-name drugs, and any 25% or greater increase in the price of generic drugs.

“That 60-days’ notice was very important to us,” said Rep. Andrea Salinas, chair of the Oregon House’s health committee, who represents Lake Oswego. “It gives doctors and patients advance notice and a chance to adjust and consider what to do.”

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.

Take A Walk On The Business Side: On The Mythology Of The ‘Recovering Lawyer’

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(Image via Getty)

“So, you’re a recovering lawyer, too? Congratulations on getting out!” I hear it all the time from well-meaning friends and strangers. It’s a familiar greeting for us former lawyers, whether in our past lives we were Biglaw associates, Fortune 500 lawyers, or a pre-IPO hot startup general counsel who now leads a business function at a blockchain startup.

Sometimes, I respond with a smile and say nothing. Other times I cheerfully assert, again with a friendly smile, “Once a lawyer, always a lawyer! And I’ve always been a happy one, in fact.” When I’m feeling particularly sassy, I might even say, “As a lawyer, I got to tell people what to do for a living. I got paid to be my control-enthusiastic self! What’s not to like?!”

But in all seriousness, why do we use the language of addiction and recovery to talk about working in law?

Some have pointed out that lawyers are known for saying “no” — or, on a good day, saying “yes, if,” which any good lawyer knows is a more diplomatic way of saying “no.” They say that the legal profession is a very prestigious, comfortable, well-paid trap, with high barriers to entry that make it grueling to leave.

I’m reminded that it’s the job of most lawyers to mitigate risk. Therefore, they say, lawyers are just overhead. When I point out in response that, in fact, lawyers play a huge role in asset creation and asset management, I’m usually met with a smirk. 

This puzzles me! Anyone who has incorporated a company, obtained a patent or a trademark, issued an option, created employee on-boarding papers, or papered an agreement has, in fact, created valuable assets for their company. Admittedly, our ability to fully optimize and intentionally manage these assets’ values and lifecycles are limited by our tools and our imaginations — but that’s another story.   

While I have a business title and can no longer claim privilege — the only real sacrifice I made when switching to the business side of things — almost everything else has stayed the same:

  • On both the business and legal sides, I have solved challenging problems that I had never encountered before. And in the process, I created value and assets for the company on both sides.  
  • On business and legal, I have shaped the company’s strategy and had a measurable impact on its future.
  • My legal training, experience, and expertise have been instrumental in both business and legal adventures. In fact, in both areas, combining my legal skills with a creative, open mind was vital in finding success.

So, I wonder if it’s accurate to call my adventures on the business side a “recovery,” rather than just, say, an “exploration.” What am I recovering from, and how?

Could it be that the separation between legal and all other parts of a company is just as mythical as Santa Claus or the Tooth Fairy? Maybe pretending that we have no choice but to “stay in our swim lane” is an outdated way of thinking. Maybe swimming diagonally and across lanes is more impactful for your company and career.

And most importantly, could the risk and creativity that you take on when leaving behind a thousand-year-old path lead to a more rewarding and satisfying career and more exciting life? What do you think?

Olga V. Mack is an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor at Berkeley Law, and entrepreneur. Olga founded the Women Serve on Boards movement that advocates for women to serve on corporate boards of Fortune 500 companies. Olga also co-founded SunLaw to prepare women in-house attorneys become general counsel and legal leaders and WISE to help women law firm partners become rainmakers. She embraces the current disruption to the legal profession. Olga loves this change and is dedicated to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and inclusive than before. You can email Olga at olga@olgamack.com or follow her on Twitter @olgavmack.

State Bar Leader Blasts Email To Lawyers About ‘Beautiful Tits’ — A Play In Three Acts

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Two-dimensional, stereotyped women… seems about right.

The Indiana State Bar’s Probate, Trust, and Real Estate group has an email listserv to discuss professional developments and build a sense of community among the membership. In this way, it’s not much different than any other professional group around the country. A couple pleasantries about the weather that everyone on the list can delete in between their work emails and Fantasy Football advice newsletters.

On Friday, the group’s leader, Steven Robinson, put out a blast that stuck to a well-worn tradition when it comes to these newsletters and kicked it off with a little trivia fact to hook the readers:

Delightfully light information. It’s hard to believe Piggly Wiggly once dominated the grocery game, but here we are. In a sense, the future grocery model that Robinson’s talking about is almost a repudiation of the Piggly Wiggly model — a return to an era where you told the clerk what you wanted and they’d gather it for you rather than letting you select it yourself and grocery stores don’t have ridiculous names.

But as Chekov says, “if you mention ‘grocery/shopping’ jokes in the first act, it needs to go horribly awry in the second act.”

This is where someone will inevitably chime in that everyone should “chill out” and “have a sense of humor.” They may even turn this into a jeremiad about “PC culture” and contend that outrage over jokes represents the downfall of America. The person making these arguments will be a white dude — probably Bret Stephens.

Everyone capable of chewing gum and maintaining a basic sense of decorum at the same time can identify why “tits” jokes don’t play in a professional setting in 2019 — if they ever really did. It’s not the end of comedy to put a lid on jokes like these; it’s the end of played-out hackery.

Bringing us to the third act of our play — a little over four hours later:

It’s… an apology, though perhaps not the apology the situation warrants. While excising the tits certainly pushes this closer, the joke’s still gazing over a wide chasm at acceptability in the far-flung distance. The foray of one character’s “tits” into the z-axis are the only thing keeping the women from being entirely two-dimensional and that’s still not going to be enough. That women are jealous, overreacting harpies sucking the joy out of every moment of life is what makes this joke “funny” and consequently what makes it profoundly unfunny to a considerable swath of the intended audience.

At least this isn’t a group of lawyers charged with meting out the rights of spouses after someone dies — you know, the sort of discipline where a profound lack of respect for wives might be a professional problem!

HeadshotJoe 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.

Prostitute Lawyer’s Husband Has Law License Suspended

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Hours after we published our account of Katie Sears, an Iowa attorney and prostitute taking a break from the latter job, the Iowa Supreme Court suspended the law license of her husband and law practice partner John Sears, forcing her to take the whole load for the time being.

In the original coverage of Katie’s alternative career, many were impressed by her husband’s “I don’t really care that much” attitude about her sex work. Based on the findings of the Iowa Supreme Court, he seems to care far too deeply, indeed dangerously, about a lot of other stuff.

From the opinion written by Justice Susan Christensen:

Five months after his admittance, on February 6, 2018, law enforcement located Sears on a highway in Polk County pushing a heavily damaged, disabled vehicle. Sears indicated he rear-ended an unknown vehicle; he did not understand where he was or where the accident took place. Law enforcement located an open bottle of vodka in the back seat of Sears’s car. After failing field sobriety tests, Sears consented to a breath test, which returned a result of 0.181 blood alcohol concentration. He was then arrested for OWI in violation of Iowa Code section 321J.2 (2018).

Driving while intoxicated is a crime that far too many attorneys commit — a byproduct of overarching substance abuse issues in the profession and the dangerous overconfidence the profession preaches. Placing the public at risk is an entirely reasonable basis for discipline. John Sears was ordered per his one-year probation on the criminal charge to attend a treatment program. He never showed up.

This is where the facts in the opinion get decidedly dark:

About two weeks later, on October 7, West Des Moines police received a 911 call from Jane Doe. The 911 call revealed a panicked Doe explaining, “[M]y ex . . . is trying to break in” and “he was here and he attacked me and then I got him to leave, and then he came back.” As it turns out, Doe is Sears’s former spouse. Apparently, Doe and Sears divorced in May but remained intimate.

His ex, who he was suing for replevin of some sex toys characterized by the judge as “described in shocking detail,” spent the day with him at her apartment according to testimony, but at some point he became intoxicated and got Doe’s handgun and asked to kill himself with it. The account continues that Doe took back the handgun and hid it, Sears beat her, she gave him back the gun, he came back looking for bullets and she took the gun back, and then he left only to return later pounding on the door and prompting the 911 call.

When police found him, they took his phone and reported these texts with current wife Katie:

At 10:04:30 PM, Sears texted, “I’m drunk as fuck.”
At 10:04:38 PM, Sears texted, “7 have I gun.”
At 10:05:00 PM, Sears texted, “And I’m leaving her 7.”
At 10:05:37 PM, Sears texted, “Let this make you happy.”
At 10:06:31 PM, Sears texted, “I’ve assaulted her.”
At 10:07:34 PM, Sears texted, “I’ve threatened to kill myself. I can’t so with her.”
At 10:08:08 PM, Sears texted, “I don’t want to kill her.”

This resulted in a restraining order, the adjustment of his earlier probation to include “secured continuous remote alcohol monitoring,” and another one-year probation for the domestic assault.

While he denies violating the restraining order, his ex-wife states that he tried to contact her multiple times afterward and eventually came to her apartment on January 30, 2019. The disciplinary commission believed her side of the story and found the whole affair to be “precisely the sort of conduct which reflects a connection between the conduct and the fitness to practice law.” The Iowa Supreme Court reviewed those findings and decided to suspend John Sears from the practice of law in Iowa indefinitely with no possibility of reinstatement for two years.

Hopefully, with the pressures of practice lifted for the time being, he can get the help he needs.

(Check out the whole opinion on the next page.)

Earlier: People May Think All Lawyers Are Prostitutes, But This Lawyer Is Literally A Prostitute

HeadshotJoe 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 Gig Economy Comes To The Legal Profession

Posted on by TSA Press

Contract attorneys have long been a staple of the legal profession — especially in the world of eDiscovery. But the work that’s traditionally been foisted upon them is the least desirable in the industry — trust me, I know. But what if it were possible to do real legal work — think legal research, court appearances, or brief writing — with the flexibility of a freelancer schedule?

That’s exactly what Lawclerk is doing to transform the legal profession. In this week’s episode of The Jabot podcast, I talk with Lawclerk co-founder — and law firm partner — Kristin Tyler about startup life, balancing being an entrepreneur with a legal practice, and why the legal market needs more flexibility.

The Jabot podcast is an offshoot of the Above the Law brand focused on the challenges women, people of color, LGBTQIA, and other diverse populations face in the legal industry. Our name comes from none other than the Notorious Ruth Bader Ginsburg and the jabot (decorative collar) she wears when delivering dissents from the bench. It’s a reminder that even when we aren’t winning, we’re still a powerful force to be reckoned with.

Happy listening!

headshotKathryn 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).

Law Schools Take Heart: Nationwide Bar Exam Scores Are Actually Up

Posted on by TSA Press

The results of the July administration of bar exams around the country still haven’t been released — but there is very good reason to think we’ll be seeing an increase in passage rates. That’s great news for all those who’ve finished law school — likely taking out massive student loans to do so — and are waiting to become real-life esquires.

According to Judith Gundersen, president of the National Conference of Bar Examiners, the average national score on the July 2019 administration of Multistate Bar Exam is up 1.6 points, to 141.1 — the largest increase in scores since 2008. The MBE counts for 50 percent of the overall score in 44 of the 54 jurisdictions that use the 200 question multiple choice exam; in the remaining jurisdictions, it counts for between 33 and 45 percent of an applicant’s bar exam grade. Regardless of the specific breakdown, an increase in the average MBE score is likely to mean an increase in passage rate. And as Gundersen notes, it is good news:

“The increase in the July MBE mean is certainly good news,” she said Monday. “While pass rates depend on a lot of different factors, we do expect we’ll see more people passing the bar exam this July as a result.”

But it is probably too early to start the celebrations. Though the bump in MBE scores is nice, it comes off of a 34-year low in 2018. Even with the sizable increase, the average score is below the mark — 141.7 — set in 2017.

However, for those that are waiting to find out if they’ve passed what is probably the biggest exam of their life, they can see this as a good sign they’ll soon be members of the bar.

headshotKathryn 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).