Author: TSA Press

So which Biglaw firm is the biggest of them all? Not like the firm that has the biggest cases or the most M&A deals but just big in the employs-the-largest-amount-of-lawyers kind of way. Well, good news for all you headcount acolytes out there — the 2019 National Law Journal 500 is officially here.

As you may recall, the NLJ 500 ranks firms by overall headcount — temporary and contract attorneys don’t count and any non-lawyer professionals do not either. The list is also focused on U.S.-centric firms, meaning they have more attorneys in the U.S. than any other country.

Before we start our counting expedition, let’s get some help from an old friend.

That was nostalgia inducing, wasn’t it? Anyway, without further ado, here is the NLJ 500 Top 10:

1. Baker McKenzie: 4,720
2. DLA Piper: 3,702
3. Norton Rose Fulbright: 3,376
4. Hogan Lovells: 2,636
5. Latham & Watkins: 2,540
6. Jones Day: 2,518
7. Kirkland & Ellis: 2,307
8. White & Case: 2,150
9. Morgan Lewis & Bockius: 2,015
10. Greenberg Traurig: 1,962

You can check out the rest of the rankings here.

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).

Why Law Firms Are Moving to the Cloud

Why Law Firms Are Moving to the Cloud

Clio

For those who have been following the fight for registrability of scandalous and immoral trademarks, you may have heard that the Supreme Court of the United States (SCOTUS) recently issued its decision in Iancu v. Brunetti, a trademark case involving the USPTO’s refusal to register the trademark “FUCT.” In a win for First Amendment expression, SCOTUS sided with Los Angeles-based artist Erik Brunetti in permitting his trademark “FUCT” (in which he prefers to pronounce the letters individually as “F-U-C-T”) to proceed for federal registration. This decision may permit other potentially offensive trademarks to receive federal trademark registration, but there is definitely more to the story her the just registrability.

As I have written previously on this topic, the prospect of SCOTUS siding with Mr. Brunetti seemed more likely than not given its previous ruling in Matal v. Tam. In that case, SCOTUS ruled in favor of band-member/applicant Simon Tam of the Asian-American band The Slants regarding the application for federal registration of their band name, The Slants. Under Section 2(a) of the Lanham Act, a trademark is not federally registrable where such trademark ”[c]onsists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute….” Originally refused registration by the USPTO based upon this prohibition on “disparaging” trademarks, Mr. Tam and his band were eventually vindicated by SCOTUS in a unanimous ruling holding the Lanham Act’s prohibition on disparaging trademarks an unconstitutional restriction on the First Amendment’s Free Speech Clause.   As a result, “disparaging” trademarks seemed to have a green light to registration.

In Iancu v. Brunetti,  SCOTUS dealt with the “immoral” and “scandalous” references in Section 2(a) of the Lanham Act, but not unanimously.  In a 6-3 decision authored by Justice Kagan, an interesting mix of justices (Ruth Bader Ginsburg, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh) held that the prohibition under the law was overly broad, violating free speech because “it disfavors certain ideas” and was essentially discriminatory.  Looking at dictionary definitions to make the point, Justice Kagan wrote:

So, the Lanham Act allows registration of marks when their messages accord with, but not when their messages defy, society’s sense of decency or propriety. Put the pair of overlapping terms together and the statute, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation. The statute favors the former, and disfavors the latter. “Love rules”? “Always be good”? Registration follows. “Hate rules”? “Always be cruel”? Not according to the Lanham Act’s “immoral or scandalous” bar.

Interestingly, the dissenting justices indicted that they would have upheld Section 2(a) by construing it narrowly to ban “obscene, vulgar, and profane modes of expression.”  In other words, you are free to use such terms as a trademark, but the USPTO should not be compelled to recognize and permit registration of such “obscene, vulgar, and profane modes of expression.”

So you can register “scandalous” and “immoral” trademarks — now what?  As I wrote previously, just because you can do something doesn’t mean that you should do it.  More importantly, this decision will likely not create a “rush” to register such trademarks because many such terms (at least the colorful ones that one may let slip out from time to time) are not necessarily conducive to operating as a trademark.  Remember that trademarks operate to distinguish ones goods and services from those of another, or to designate origin — many “obscene, vulgar, and profane modes of expression” simply don’t do so on their own, and may require differences in spelling, logos, or other stylization along with acquired distinctiveness to qualify for such trademark protection.  Further, such expression is not limited to words — commonly known physical expressions (like “flipping the bird”) are not exempt from the requirements for valid trademarks.  As a result, I don’t see a rush to registering such marks anytime soon.

Although the decision is a victory for free expression, whether it will be a victory for trademark owners remains to be seen.  Not every business is conducive to using some form of “obscene, vulgar, and profane modes of expression” to distinguish its goods and services, and I would venture to say that not many are courageous enough to build a brand around it. Don’t get me wrong — I stand with the majority in the SCOTUS decision in this case because the statute engenders a “facial viewpoint bias” that cannot avoid a “viewpoint-discriminatory application.”  That said, your company (or client) should beware — not every person or business will be willing to create a brand around such controversial expression, and even if they do, such expression may not meet the requirements for federal trademark registration.  So, tread carefully when addressing “scandalous” or “immoral” trademarks for your company (or clients), as you may end find yourself on the receiving end of some “colorful” expression if you’re not careful.

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.

South Florida has always been known as a destination for retirees and people who want a more laidback lifestyle. Even 13 years ago when I moved here, Miami felt like a second-rate city (especially in comparison to the cosmopolitan, world-class feel that the greater downtown Miami area possesses today). But over the past decade, law firms and businesses have been setting up shop throughout South Florida, with many organizations headquartering their Latin America operations here. 

Today, cities such as Miami and Ft. Lauderdale are attracting younger professionals from all over the country who have been looking for a better work/life balance and quality of life overall. If you are an associate attorney thinking about relocating, South Florida presents a multitude of opportunities for those looking to put down roots. 

The Law Firm Scene

Though many of the law firms in South Florida have been here for decades, over the past 10 years, many Am Law firms have decided to penetrate this market and open offices. Currently, South Florida is home to 39 Am Law 200 firms and counting. The ever-increasing investment into the area has led to a number of these firms adding a lot of top quality talent to their ranks, including a good number of associates who have relocated from other markets. In fact, according to the U.S. Bureau of Labor Statistics, the market has grown by more than 4,700 lawyers over the past decade — that’s a growth of more than 30 percent, three times faster than the rest of the job market.

What Firms Are Looking For

Many come here lured by the beaches, perceived relaxed lifestyle and lack of state income tax, but those that find the most success in the area are associates who have a tie to the area and a plan to make a home in Miami, Fort Lauderdale, and the surrounding cities. 

Considering the cost of hiring and training an attorney, law firms are most interested in those attorneys who are committed to making a career for themselves in the area and dedicating their career to this business community. There is a strong value on community, and in South Florida, you have to not only be relationship-focused but also work smart. 

The market is in rapid growth mode, so standing out is key. Firms typically want associates with three to six years of experience, top academic credentials and training from firms in the most sophisticated markets. However, being successful in another city does not always guarantee success here. Those from the East Coast tend to acclimate better than those from the West. As do those practicing in the most in demand areas: 

• General corporate (especially Mergers & Acquisitions and Private Equity) 
• General commercial litigation 
• International arbitration and dispute resolution 
• International tax 
• Commercial real estate 
• Land use 
• Insurance (mostly defense and coverage) 
• Labor and employment   

What Is Required to Practice 

If you are ready for the move and the commitment to the market, be aware that Florida does not offer reciprocity between other jurisdictions. Anyone who intends to practice law in the state must pass the Florida Bar. In order to sit for the Florida Bar exam, you must have graduated from a U.S.-accredited law school, which means foreign applicants will need more than an LL.M. 

This is often a huge shock to international associate attorneys who practice law in New York for a top-tier firm and possess an LL.M from a U.S.-accredited law school. Many, especially those from Latin America, think that the obvious next step in their career is relocation to Miami. This is just not possible even though Miami is becoming more and more of a hotbed for foreign investment.

While the Florida Bar is required, most firms are open to hiring candidates who are willing to sit for next Florida Bar exam — and willing to support them taking the time off to study for and take the exam. Many firms will also provide ample relocation packages to help cover moving expenses. 

Life in South Florida

South Florida is growing at rapid speeds, and Miami, in particular, is a city on the rise. Today, “Brickell” alone boasts Mary Brickell Village, which is filled with exclusive, high-end retail and restaurants. While Brickell City Center, a five-million square foot complex, spans more than five city blocks and contains high-end shops (Saks Fifth Avenue is their anchor store), office towers and a five-star hotel. Luxury high rise condominiums are continuously being built as more young professionals and foreign investors turn toward Miami as a place to live and/or invest. 

The Pérez Art Museum Miami (PAMM) and Frost Museum of Science are two great cultural additions to the “downtown” area of Miami’s business district. The annual Art Basel Festival, Miami Food & Wine Festival, and Miami Boat Show are just a few examples of the excellent cultural offerings that the city possesses. 

People are attracted to South Florida for the temperate climates and lower cost of living than other major East Coast cities. 

Working with a Recruiter

Teaming up with a tenacious, relationship-focused legal recruiter is the best move an associate can make before relocating to any city. A recruiter who has lived and worked in a particular market for a long time and has the backing of a strong, progressive recruitment firm will be able to provide guidance that is tailored to your goals and experiences. They will know the ins and outs of the local law firms and have access to both local and national information. They will also be able to guide you through every step of the process from applying to the firm and setting up interviews to negotiating relocation package.  

It is an exciting time to be in Miami. People are flocking here in droves from all corners of the world. Anyone who relocates here (including myself) and stays here really learns to love and appreciate this city. The best talent is in demand to help make this are one of the very best business centers in our country. If Miami is on your mind, reach out to a reputable legal recruiter. Together, we can help raise this city to its full potential. 

Judge Theresa Brennan, a suspended county judge in Michigan, has now been permanently removed from office and barred from running for judicial office again for six years.

A judge being forced from office isn’t the first time a judge has gotten booted from office for ethical lapses. It isn’t even the first time in Michigan. And there’s life after getting kicked off the bench — Roy Moore manages to keep coming back from repeated expulsions like the anthropomorphized strain of herpes that he is and the rehabilitation of Alex Kozinski that no one asked for appears well underway — yet it feels like Judge Brennan may not be able to mount a comeback after setting something of a land speed record on ethics charges.

How many ethical lapses do you think one judge can be found committing? Because let’s see if she topped it. From Courthouse News Service:

Brennan was found to have not disclosed a romantic relationship with a key witness in a murder trial she presided over….

Did Brennan’s relationship have an impact on the case? “[Brennan] told a court reporter she believed the accused was guilty based on conversations she had with Furlong.” So… yes. The conviction has since been overturned and the guy awaits a new trial.

The judge also failed to disclose a close personal relationship with an attorney who appeared before her in five trials between 2014 and 2016 and denied motions to disqualify herself in those cases.

The cop and an attorney? The only time something like that’s acceptable is if you’re casting a courtroom drama and you’re worried about introducing more characters so they just have to double up and date people at work.

She was also said to be highly abusive to employees as well as attorneys, witnesses and general litigants. Employees were forced to perform personal tasks for her during business hours and also work on her re-election campaign, according to court records.

Just some light election violations and misuse of public resources for good measure.

[Brennan also] did not immediately recuse herself from her own divorce case.

In retrospect, $4 million a month in alimony did sound a little suspicious.

At least there’s not anything else…

She defied an ex-parte motion to preserve evidence for the divorce trial and made false statements under oath when deposed about it. Last December, she was charged with perjury, tampering with evidence and misconduct in office.

We’re all for second chances around here, but maybe Judge Brennan should sit out the next couple years to catch her breath.

Michigan High Court Removes Embattled Judge From Bench [Courthouse News Service]

The Supreme Court last week agreed to hear a case with potentially far-reaching implications for the future of legal research, presenting the question of whether a state may assert copyright in the publication of its legal materials.

“Answering this question,” said the Eleventh U.S. Circuit of Appeals in deciding the case being appealed, “means confronting profound and difficult issues about the nature of law in our society and the rights of citizens to have unfettered access to the legal edicts that govern their lives.”

What makes the case difficult is that the publication at issue falls in a grey area between two well-established lines of precedent. On one hand, it is well established that governments may not claim copyright in “government edicts,” such as cases, statutes, and regulations. On the other hand, it is equally well established that private publishers may claim copyright in explanatory and supplementary material they author, such as annotations and headnotes.

The case, Georgia v. Public.Resource.Org, involves the state of Georgia’s claim of copyright in the Official Code of Georgia Annotated (OCGA), the official codification of Georgia’s laws, which is published by LexisNexis under contract by the state, and which includes annotations written by LexisNexis, but subject to editorial control and approval by the Georgia Code Revision Commission.

In 2013, Carl Malamud, CEO of Public.Resource.Org, a site devoted to making government information more accessible to the public, paid $1,207.02 to purchase the entire print set of the OCGA. He then scanned the set and posted it to his site. He also sent copies on thumb drives to various Georgia legislative officials and distributed copies to other websites.

The Code Revision Commission sent Malamud multiple notices demanding that he take down the materials and cease and desist from publishing them. When Malamud refused, the commission, on behalf of the Georgia legislature, filed suit in federal court in Atlanta.

In the district court, Georgia prevailed. The court granted partial summary judgment, concluding that the annotations lack the force of law and are therefore not public domain material. The court also rejected Public.Resource.Org’s argument that its publication was protected by the fair use doctrine.

The Eleventh Circuit reversed, concluding that Georgia could not assert a valid copyright interest in any part of the OCGA.

[W]e conclude that the annotations in the OCGA are sufficiently law-like so as to be properly regarded as a sovereign work. … As a consequence, we conclude that the People are the ultimate authors of the annotations. As a work of the People the annotations are inherently public domain material and therefore uncopyrightable.

In its petition for Supreme Court review, Georgia argued that the annotations to the Georgia code lack the force of law and therefore are not subject to the government edicts doctrine. It argued that the Eleventh Circuit’s interpretation was a “novel expansion” of the doctrine and is at odds with the decisions of four other federal circuits.

The Eleventh Circuit’s decision, said Georgia’s petition, “threatens to upend the longstanding arrangements of Georgia and numerous other states that rely on copyright’s economic incentives to create and distribute annotations useful to guide legal research, while ensuring that the states’ laws are widely disseminated and easily accessible.”

In its response to Georgia’s petition, Public.Resource.Org supported the request for Supreme Court review, citing confusion and inconsistency among lower courts in applying the government edicts doctrine, but it argued that the Eleventh Circuit’s opinion was correct.

Here, the State of Georgia decided that its only official code should be annotated. The state itself oversaw the preparation of the work, even though it farmed out to an experienced code publisher the labor of organizing the statutes and drafting the annotations. The state registered the copyright in the annotations in its own name, compensating the publisher only by giving it an exclusive license for a limited term.

Georgia is one of only nine states that include annotations as part of its official legislative code. But at least 20 states have registered copyright in all or part of their codes. States and private publishers also claim copyright in various other government-related legal materials. For this reason, legal publishers on both sides of the issue are hoping the court will lay to rest any confusion about the applicability of copyright to the law.

The court’s ruling could affect other pending litigation. Two legal research companies, Fastcase and Casemaker (via its parent Lawriter LLC), have been engaged in litigation for a number of years over Casemaker’s claim of copyright in Georgia administrative regulations. Last October, the Eleventh Circuit reversed a lower court’s summary judgment for Casemaker and remanded the case for further proceedings.

And in 2017, a federal court issued a permanent injunction barring Public.Resource.Org from publishing technical and scientific standards that are written by private standards developing organizations (SDOs) but that are incorporated by reference in the Code of Federal Regulations.

More broadly, the decision could have broad implications for access to law, say a group of law students, law professors, and small-firm lawyers in an amicus curiae brief supporting the Eleventh Circuit’s opinion. Unfettered access to the law is required, they argue, for law students to learn, legal educators to teach, and lawyers to advise their clients competently.

The decision could also impact the future of innovation and accessibility in legal research, say a group of “next-generation” legal research platforms and a digital accessibility advocate who also filed an amicus brief. Allowing copyright in legal materials, they argue,

hinders the valuable work being done by legal innovators, like amici, who create tools to inform and empower the public and everyone in the legal field. Amici’s innovative tools increase access to the law and to justice; they also improve the efficiency and quality of legal advocacy and legal services through an array of sophisticated new research, distribution, visualization, and predictive analytics tools.

Even some of the publishers who currently benefit from these copyrights argue that the current state of uncertainty in the law could inhibit innovation and investment in legal research products. The Software & Information Industry Association — of which LexisNexis is a member — filed an amicus brief arguing that, because of this uncertainty, “SIIA’s members will necessarily be discouraged from investing in the production of law-adjacent works.”

Many entities have stakes in the outcome of this case. The governments that claim copyright. The publishers that own the licenses. The non-profits that seek to distribute these materials. The next-generation research companies that want to fill out their libraries.

But in the end, the Eleventh Circuit got it right when it described the significance of this case as one that implicates “the rights of citizens to have unfettered access to the legal edicts that govern their lives.”

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).

The New York Mets in their worst season didn’t have as many errors as this indictment.

— Mark White, of White Arnold & Dowd, representing Marshae Jones told AL.com he will be filing a motion to dismiss the charges against his client. Jones’s criminal case rose to national prominence when Alabama indicted her for her fetus’s death after she was shot and the charges against the shooter were dropped. Jones’s case has been a source of outrage for those that see this as a dystopian extension of Alabama’s anti-choice laws. White went on to say “It appears that someone who should’ve been objective decided to frame the narrative for their own personal political reasons.” He also noted Jones’s case was an “unprecedented, inappropriate charge that is not permitted under that the law in Alabama.”

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).

Last month, amid news that thanks to smaller law school class sizes, the overall employment picture is looking brighter (even if artificially), we wondered if law school tuition cuts and freezes would be making a comeback. After all, law graduates are still being burdened by incredibly heavy debt loads.

The University of Hawaii William R. Richardson School Law recently decided to freeze its tuition until 2023. Has anyone followed suit? You betcha! Today, we have news that the University of South Carolina School of Law has slashed its tuition “significantly.” But just how significantly are we talking?

According to The State, a 17.3 percent tuition cut has been made for in-state students to compete with other state universities. Tuition for in-state students at South Carolina Law will be $5,100 cheaper next year — down to $24,508 from $29,608 — thanks to an infusion of cash from the state legislature.

Under [House budget committee chairman Murrell] Smith’s direction, S.C. lawmakers increased the state’s spending on the University of South Carolina by about $8 million this year, with an understanding that USC leaders would direct $1.9 million of it specifically to lower tuition at the law school where a number of state lawmakers got their degrees.

The new money brings USC’s in-state tuition in line with UNC, but still not as low as Georgia. Wilcox said he is most excited for current students who recently were notified their tuition bill would drop next year.

Smith, a 1993 USC Law graduate himself, paid less than $2,000 a semester to attend the school. “I literally could (work as a law) clerk during the school year and summer and pay my law school tuition,” he said. “I know those days are gone, but … we’re not doing our young people any favors by leaving them with enormous debt.”

Dean Robert Wilcox had this to say about the law school’s tuition cuts: “It’s probably the best news that a couple hundred law students have received in some time.”

Congratulations to all of the in-state students at South Carolina Law who will benefit from their cheaper tuition, and condolences to the school’s out-of-state students, who will still be getting hosed with a $54,502 cost of attendance.

Will other law schools step up to decrease or freeze tuition in an effort to assist their graduates with their future loan payments? We certainly hope so, but in the meantime, time is ticking and interest on current students’ loans is already piling up. The time to make a decision is now. Help your future graduates as much as you can.

In an era of rising college costs, USC’s law school is slashing tuition significantly [The State]

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.