Author: TSA Press

Getting a phone call from someone’s compliance or general counsel’s office acknowledging some technical violation of the rules is instantly one of the best days in any regulator’s year. A fine, however modest, can be assessed, indicating one’s effectiveness, without recourse to a tedious investigation, unpleasant negotiations with lawyers who are quite frankly better than you or having to convince judge or jury of the justness of your cause, however thin the evidence. Even FINRA manages to not screw it up (usually), and everyone’s very happy to look like their doing something without actually doing anything.

“The more things change, the more they stay the same,” goes the epigram attributed to 19th century French writer Jean-Baptiste Alphonse Karr. I could not help but think of that as I reviewed the results of the 2019 Legal Technology Survey Report produced by the American Bar Association’s Legal Technology Resource Center.

For all the development and innovation we have seen in legal technology in recent years, some legacy technologies stubbornly stick around. Here are five technologies that you might have thought were dead within law practice but that, according to the survey, are still being used by lawyers.

1. Books

Never before have legal professionals had access to such a wealth of online research materials. From paid services to free ones, from established providers to innovative startups, we have an array of tools available to us for virtually any legal research task.

Given this, you may be surprised to learn that print materials are still widely used for legal research. According to the survey, 44% of lawyers say they use print materials for research regularly, and another 32% say they use them occasionally. Only 5% of lawyers say they never use print materials.

Even more surprising, when lawyers were asked the resource they turn to first when starting a research project, 7% answered print materials. This was only slightly behind the 10% who said they start with a bar-sponsored free research service such as Fastcase or Casemaker.

As you might expect, age is a factor here. Lawyers over 60 are more likely than younger lawyers to regularly use print materials. Fifty-three percent of those over 60 regularly use print materials, compared to 29% under 40.

2. CD-ROMs

In the early days of what was then called computer-assisted legal research, when computers were slow and Internet connections even slower, legal research companies often delivered their materials to lawyers on CD-ROMs. But as online legal research flourished, research via CD-ROMs became all-but obsolete.

“All-but” being the operative phrase. According to the survey, 6% of hangers-on still regularly use CD-ROMs. Solos are most likely to use CD-ROMs, but even at the largest firms, 4% of lawyers still regularly use them.

But the CD-ROM may be close to its last breath. Nearly half of lawyers (48%) say they never use CD-ROMs for legal research and 29% say they seldom do.

3. Fax

The fax machine is like that nagging cough that persists long after your flu symptoms have subsided. There is no rational explanation for why the legal profession continues to use the fax, and yet it does, in surprisingly large numbers.

According to the survey, more than three-quarters of firms (77%) still use the fax as a form of communications software. That number has not changed over the survey’s past three years and has actually gone up since the 2016 survey, when it was 70%. Among individual attorneys, 43% say they personally use the fax for law-related tasks.

In fairness, it appears that the bulk of those who are sending and receiving faxes are doing so via electronic fax software, with the most popular software brand being eFax, used by 57% of lawyers. The survey makes no mention of the legacy fax machines that were once ubiquitous in law offices, so it offers no insight into the extent to which they are still used.

4. BlackBerrys

It sometimes seems as if every lawyer has an iPhone, and the survey confirms this. When asked what smartphone they use, 79% answered iPhone and 18% answered Android. Two percent do not use a smartphone.

But a small sliver of loyalists sticks to a BlackBerry. According to the survey, BlackBerry remains the smartphone of choice for 1% of lawyers.

It was not long ago that BlackBerrys seemed ubiquitous among lawyers, especially among lawyers at large firms. But its decline was precipitous. In 2011, 40% of lawyers used a BlackBerry. By 2013, that had dropped to 16%, by 2016, to 3%, and now, to 1%.

5. WordPerfect

Another product that once dominated the legal market is WordPerfect. In the late 1980s and early 1990s, you would be hard-pressed to find a lawyer who was not using WordPerfect (at least among the lawyers who were using computers). But from the mid-1990s on, lawyers’ loyalty began to shift to Microsoft Office and Microsoft Word.

Aficionados will debate what caused WordPerfect’s demise. Some say it was Microsoft’s monopolistic tactics. Others blame it on WordPerfect’s failure to smoothly transition from DOS to Windows. Whatever the cause, Word is now the legal profession’s word processor of choice. According to the survey, 98% of lawyers say that Word is available to them at their firm.

But guess what? WordPerfect is still alive and kicking. Eighteen percent of lawyers in the survey said that WordPerfect is available at their firms. That is more than offer access to Google Docs, which just 9% of lawyers said their firms offer. Note that the survey question was not whether the lawyer personally used WordPerfect but whether the software was available at the lawyer’s firm.

In addition, when lawyers were asked what software they use for PDF creation, 14% answered WordPerfect — almost as many as use Power PDF (15%). The same percentage of lawyers said that they use WordPerfect as their redlining software, second to Word (86%) and ahead of CompareRite (10%).

Which, by the way, should be sixth on this list. LexisNexis retired CompareRite in 2002, yet 10% of lawyers still use it.

Some of us spend a lot of time talking about the law office of the future. But the Legal Technology Survey Report raises the specter of the law office of the past. Somewhere out there, a lawyer is picking up a book, sending off a fax, loading a CD-ROM, pecking keys on a BlackBerry, and rejoicing in WordPerfect’s much-vaunted Reveal Codes.

Plus ça change!

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

Just for context:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Barbara Lentz was a legal writing professor at Wake Forest University School of Law since 2000, but her contract was not renewed in September of 2018. In a lawsuit, Lentz alleges she was let go due to discrimination based on her age, gender, and medical condition.

Lentz alleges that she taught 15 different classes over the course of her employment at Wake, including doctrinal classes such as Contracts. However, she alleges that she was paid less for her teaching hours, something the university allegedly justified as the difference between legal writing class hours and doctrinal ones. But when Lentz stepped up to teach doctrinal classes, while she got a bump in pay, the complaint alleges it was less than the usual amount paid for doctrinal classes. According to the complaint, there were multiple points during her time at Wake when she was paid less than male counterparts.

Lentz says the only formal review of her performance was after she revamped the way Contracts was taught and received the 2018 Innovation in Teaching Award by Wake Forest University, and that review was understandably exemplary. However, Lentz says that she asked numerous times over the years to have her pay explained, but was brushed off and told her performance was “vaguely inadequate.” The complaint then details a specific incident when Lentz received a negative performance review because she didn’t smile enough:

Following Plaintiff’s request to have her pay explained, each year for several years, Defendant held a meeting with [then Associate Dean Suzanne] Reynolds and Plaintiff (and occasionally others who supervised Plaintiff) where Plaintiff was told her performance was vaguely inadequate, but these were pre textual assertions designed to retaliate against, buy, and intimidate Plaintiff. No document was ever produced or reviewed, no performance plan was ever discussed, no review of Plaintiff’s teaching and service was made until the exemplary review in April 2018. For example, one year Reynolds informed Plaintiff, reading from a one-inch post-it on Reynolds’s finger, that Plaintiff’s performance was somehow subpar because Plaintiff had not smiled on one occasion in the hallway. Defendant did not produce a copy of the post-it when Plaintiff requested copies of all materials.

She also says that when she was promised a five-year contract in 2015, it was delayed and never put in writing, saying, “Defendant’s practice with plaintiff was to make a promise of employment, but then refuse to provide a timely written agreement of the agreed upon terms.”

Lentz also alleges she was wrongfully discharged under the Americans With Disabilities Act and Family Medical Leave Act. In 2018, she was diagnosed with hypertension as well as other medical issues that caused her to miss orientation week for that semester, which she says was the impetus for the school terminating her employment.

When reached for comment, a Wake Forest spokesperson said they are unable to comment on pending litigation.

Read the full complaint on the next page.

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

The Supreme Court heard oral argument today in New York State Rifle & Pistol Association v. City of New York and… it’s going to be okay. This is the first gun case the Court has heard in a decade. In the last one, D.C. v Heller, Justice Antonin Scalia invented an entirely new gun right: A personal right to keep a firearm in the home for self-defense. Many were worried that the Court might use NYS Rifle to create a new gun right for outside the home. But there seemed to be little appetite at oral argument to do that.

Instead, the case will likely turn on mootness. New York State had a permitting regulation that the gun lobby complained about. Likely fearing what an aggressive, conservative Court would do to the very concept of state regulations of firearms, New York changed the law. Still, the gun lobby pressed its case. Shockingly, the Supreme Court agreed to hear it, but today was all about how they probably shouldn’t have. From CNBC:

Paul Clement, who argued on behalf of three gun owners in New York and a state affiliate of the National Rifle Association, argued that the case was still active because his clients could potentially seek monetary damages in the future.

Clement also argued that even under New York’s new regulations, his clients could still be penalized if they did not travel directly to a firing range outside the city, such as if they stopped for coffee.

But Richard Dearing, an attorney for New York, said that the city guaranteed that gun owners would not be prosecuted for such stops. And he said that any challenge to the new regulations would have to be argued in a future battle.

“There may be a controversy here. But it’s a new controversy that will have to be litigated in a new case,” Dearing said.

Justices Samuel Alito and Neil Gorsuch seemed hot to get to the merits of the case, instead of mootness. But alleged attempted rapist Brett Kavanaugh pulled a Clarence Thomas and rendered himself mute during the arguments. Arguably, this case isn’t even in front of the Court without Kavanaugh. I’m guessing he was the fourth vote to grant cert in this case. But his unusual silence suggests that even he is unsure if this is the right case to upend the regulator power of the states.

Don’t be fooled, there will be a case this Court will find to continue its pro-death reading of the Second Amendment. This just never seemed like the right one. Not with John Roberts, who loves to punt cases, still there as a critical fifth vote.

I still can’t tell you why the Court decided to hear such an obviously moot issue. And, therefore, I could still be surprised by the ruling. But, based on the readout from oral arguments, it sure seems like the moot case will be ruled moot, perhaps with Alito writing some kind of threatening concurrence warning states that any attempt by the states to protect themselves from gun violence will be met with retribution from the Supreme Court.

For now, I consider this bullet, dodged.

Supreme Court shows little appetite for expanding gun rights in arguments over repealed New York regulation [CNBC]

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Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

Federal prosecutors are using laws they normally would use to prosecute drug dealers in a criminal investigation of drugmakers to determine if they intentionally allowed communities to be flooded with opioids, according to a news report.

Citing people familiar with the matter, The Wall Street Journal reported that the prosecutors in New York had opened a criminal investigation into several companies to find whether they had violated the Controlled Substances Act. The unnamed sources told the newspaper that grand jury subpoenas reported in regulatory filings by at least six companies – Teva Pharmaceutical Industries, Mallinckrodt, Johnson & Johnson, Amneal Pharmaceuticals, AmerisourceBergen and McKesson – were connected to the investigation. The latter two companies are among the largest drug distributors in the country, while the others are drug manufacturers. Subpoenas for additional companies are expected in the coming months.

The investigation is in addition to litigation comprising lawsuits filed by more than 2,300 municipal, county and Native American tribal governments from around the country over the defendants’ alleged role in creating the opioid crisis. The multi-district litigation, known as MDL 2804, includes another distributor, Cardinal Health, as well as retail pharmacy companies, and is taking place in the U.S. District Court for the Northern District of Ohio in Cleveland.

Last month, Teva and the three distributors reached an 11^th hour $260 million settlement that would enable them to avoid a trial, and it was previously reported that the distributors were in talks to settle the litigation for $18 billion. Other companies involved in the litigation had also been seeking settlements, and it was reported that Purdue Pharma – maker of the long-acting opioid painkiller OxyContin (oxycodone) – was seeking to resolve the litigation by filing for Chapter 11 bankruptcy and paying billions of dollars over the course of several years.

In another case, a judge in Oklahoma had ordered Johnson & Johnson to pay $572 million in August after finding that the company had created a “public nuisance” by helping to fuel the opioid crisis in the state, but it was subsequently determined that he had made a computational error after the company appealed the ruling. A $107 million charge was thus reduced to $107,000.

Photo: Moussa81, Getty Images

Tambudzai Nhari, a 69-year-old widow, knows the difference between having property rights in theory and having them in fact. When her husband died four years ago, she inherited three small thatched huts, but none of the surrounding fields that he owned. And her in-laws even dispute her ownership of the huts.

“My brothers-in-law took all the fields my late husband owned, leaving me staring at this poor little home,” said Nhari. She lives outside Marondera, a town about 80 kilometers east of Harare.

Her in-laws see things differently. “The home belonged to our brother and now it is our home. His widow just stays there and nothing more,” said Gilbert, brother of Odreck Nhari, Tambudzai’s deceased husband.

Tambudzai Nhari recalled participating in gangs of violent fighters that seized white-owned farms in Zimbabwe two decades ago. But since those land struggles, she has never had even a single piece of land to her name.

“During the war, women like myself just fought, not knowing that we were simply helping our men to become owners of land,” Nhari said. “None of that land is in my name.”

Nhari is one of millions of Zimbabwean women who have no ownership rights to farms or other agricultural property, despite decades of working in agriculture. Like Nhari, many Zimbabwean women face resistance to their rights to own land, mainly from family members after their husbands pass away.

The lack of land ownership contributes to high rates of poverty among Zimbabwe’s women, who constitute 60 % of the country’s 16 million people. “Women in Zimbabwe bear more poverty than their male counterparts because a significant number of them own no land or properties,” said Melinda Musasiwa, a member of the Zimbabwe Women Lawyers Association.

Lack of land ownership is a significant barrier to income in an economy largely based on agriculture. The country has 39.6 million hectares of land, very little of it owned by women.

Yet women have the formal law on their side. Under Zimbabwe’s constitution, everyone has a right to buy, own and sell all forms of property, regardless of gender and marital status.

Moreover, Zimbabwe signed the 1979 United Nations Convention on the Elimination of All Forms of Discrimination against Women, the 1995 United Nations Beijing Platform for Action, and the Southern African Development Community’s 1997 Gender and Development Declaration. All of these declarations forbid placing women at a disadvantage.

The gap between theoretical and actual land ownership by women can be traced to graft, says attorney Musasiwa. “Corruption is hugely disadvantaging Zimbabwe’s women in land and property ownership, because most women have nothing of value to give in return for rights related to land and property,” she said.

Zimbabweans are facing a bleak few months beyond the festive season as a financial crisis – characterised by rising hyperinflation, foreign and domestic currency shortages, and company closures – worsens the plight of the populace in an economy already burdened by drought and the ongoing effects of Cyclone Idai.

There is more bad news: the crisis will persist for a long time to come, say economists and analysts.

They have warned Zimbabweans that they may have to become accustomed to life without essentials such as electricity, food and healthcare – a situation worsened by the doctors’ strike, over pay and poor working conditions, that has lagged for nearly three months.

The drought has been dire, exposing more than 2 million people to hunger and even starvation if there is no immediate intervention.

The US-based Famine Early Warning Systems Network – a leading provider of information and analysis on food insecurity – puts the effects of Zimbabwe’s current food insecurity into greater perspective in its November report, released this week.

The report warns that “large-scale assistance needs persist and are expected to continue through at least the start of the main harvest” in April 2020.

“The high parallel market exchange rates for foreign currency still largely influence the pricing of most goods and services,” says the report.

“This is impacting a large proportion of the population, whose earnings in local currency are vastly eroded.”

President Emmerson Mnangagwa’s government had hoped to address some of the distortions in the financial sector by having Zimbabwe ditch the use of foreign currencies – in place since 2009 at the height of hyperinflation – and bringing back the Zimbabwe dollar.

The Zimbabwe dollar marked its return earlier this year, and new notes bearing its insignia were introduced about two weeks ago.

However, this has not eased pressure on the economy, say economists.

One of the major criticisms against reintroducing the Zimbabwe dollar has been its immediate loss of value, with companies such as Nampak taking a R2 billion knock, attributed mainly to the financial volatility in Zimbabwe.

The JSE-listed company said this week that it had “provided for an expected loss” on R800 million in cash balances from the Zimbabwe currency unit.

For South African retailer Pepkor, Zimbabwe’s failing economy and soaring inflation have resulted in the company relinquishing its majority shareholding in Power Sales, a clothing retailer with operations across Zimbabwe.

Chris Mugaga, CEO of the Zimbabwe National Chamber of Commerce, said the new notes were never meant to address the dire economic situation.

Rather, he said, the introduction of the notes and coins, which the Reserve Bank of Zimbabwe expects to bump up to Z$1 billion within the next six months, was merely aimed at substituting electronic balances with local hard currency.

“It was a misconception to expect the new money to stabilise the economy,” he told City Press this week.

“The point was for us to keep in line with best practice in terms of benchmarking hard currency in the economy against the total money. For Zimbabwe, we are looking at a current figure of below 2%, but internationally, it has to be between 10% and 15%.”

Mugaga explained that Zimbabwe’s economy was highly informalised, with more than 60% of it classified as the “grey economy”, describing a high demand for cash.

“Naturally, the propensity for using cash becomes more elevated,” he said.

“The Reserve Bank has not pumped money into the economy; it is not inflationary because they have not pumped new money on top of the electronic balances.

“It is a matter of withdrawing electronic balances and substituting them with hard currency.”

But the inflation figures tell another story. The latest official figures show month-on-month inflation accelerating from 17.7% in September to 38.8% in October.

Zimbabwean companies listed on the Zimbabwe Stock Exchange are already required to implement hyperinflation accounting standards for reporting purposes.

For Taurai Nyanga, a 31-year-old part-time teacher in Harare, the cost of living continues to escalate beyond his means, and the financial and economic meltdown is taking its toll.

He supplements his salary by giving extra lessons.

“If it is this difficult for those of us who have some form of an income, I feel for those who do not have anything. You can only get Z$300 from the bank and to do so, you have to wake up early or be prepared to spend the whole day there – yet you cannot buy much with the money. This week, I had to sell the cash I got from the bank to have some extra money,” said Nyanga.

John Mangudya, the governor of Zimbabwe’s central bank, is in a difficult position as he tries to address the hard-currency shortages while battling inflationary pressures.

He said this week that new, higher-denominated Zimbabwe dollar notes would be introduced: “While managing money supply to avoid inflation, we will soon introduce higher denominations. This is necessary to enhance convenience to the transacting public.”

But Nathan Hayes, an Africa analyst at the Economist Intelligence Unit, told City Press that the new notes stood little chance of addressing the financial sector crisis.

“In an environment of spiralling price increases, the new notes will purchase little,” he said, adding that “ongoing inflation and currency depreciation” would further erode their value.

“In order to really boost conditions in the economy, the government needs to boost confidence in the Zimbabwe dollar, and to improve its purchasing power and ability to retain value. Improving economic fundamentals will therefore be vital as a precursor to successfully introducing a new currency,” said Hayes.

Hayes and other analysts focusing on the fundamentals of Zimbabwe’s economy say the sanctions imposed on individuals and some companies by the US and the EU do not constitute “restrictions on investments into Zimbabwe or trade” with the southern African country.

“The sanctions target both specific individuals and companies. Zimbabwe’s current economic crisis is not the result of these targeted sanctions, and can be attributed to decades of economic mismanagement and corruption,” said Hayes.

Jee-A van der Linde, an economist at NKC African Economics, had a more nuanced take on the matter.

“There is some credibility to the Mnangagwa administration’s claim that they have a raw deal,” he told City Press this week, but was quick to add that “the administration has done its fair share to prove that international reservations” on the government and its policies were warranted.

“Perhaps there is an argument that the regime’s hands are tied with regard to making economic progress, but it has absolute freedom to clean up its governance act and begin to demonstrate that the Robert Mugabe era really is behind it,” said Van der Linde.

“Essentially, it is up to the government to get its act together.”

Although Mnangagwa and regional Southern African Development Community leaders want the targeted sanctions lifted, analysts have said there are no immediate prospects of that.

Opposition leaders in Zimbabwe say the government has to speedily factor in political and electoral reforms first. Opposition party The Movement for Democratic Change (MDC) has maintained pressure on Zimbabwe’s ruling Zanu-PF party, but has encountered police resistance in staging its anti-government demonstrations.

MDC deputy president Tendai Biti called the sanctions mantra coined by the government a “false narrative of deception, deflection, diversion and deceit” which sought to “deflect from the illegitimacy and failure of the incompetent” current regime.

Moreover, the US Senate Committee on Foreign Relations tweeted this week that the crisis in Zimbabwe was causing its citizens great hardship and challenged Mnangagwa “to work with, not against, his people to end corruption and implement reforms to restore the economy and end the suffering” of the populace.

Mnangagwa took over from former leader Mugabe after a coup in 2017. He has insisted that sanctions are hampering the country’s economic recovery.

The Cyclone Idai disaster, which hit Zimbabwe in March, has added to the government’s woes.

Analysts believe that apart from the infrastructure destruction, the cyclone also affected agricultural productivity across crops such as grain, tea and coffee.

The resultant food shortages and destroyed farming ventures exerted further pressure on food insecurity and unemployment.

Hayes said there was a growing risk that the government would revert to printing money to fund the fiscal deficit.

This is the same policy that contributed to hyperinflation in the 2000s, following massive growth in the money supply base.

In his 2020 budget presentation, delivered in October, Finance Minister Mthuli Ncube announced the end of austerity measures which have seen prices for fuel, grain and electricity escalate, thanks to the removal of subsidies.

Ncube and Mnangagwa have said that the economy will improve next year.

But tension is running high as Zimbabwe’s economy continues to plummet, exacerbated by frustrations over the financial situation.

Fuelling more anger are the weekly price increases in fuel, the lengthy electricity outages and the continued political standoff between Mnangagwa and his main rival, MDC leader Nelson Chamisa.

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