AZ Lege Cancels Masks Because We Never Wore Masks To Stop AIDS, Checkmate Libs

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HIV “was going to wipe our global destruction of human bodies with AIDS,” state Rep. Joseph Chaplik said to his fellow state legislators in Phoenix yesterday as he urged them to ditch the state’s mask mandate for private businesses. “We heard about that in the ’80s. Yet no masks were required.”

Which is technically correct. No one proposed laws mandating face masks to prevent the spread of a blood-borne virus transmitted during the AIDS crisis. Good job, Representative.

But we did strongly encourage people to wear penis masks, AKA condoms, to prevent the “global destruction of human bodies with AIDS.” And while the death toll from AIDS during the ’90s, when reliable statistics became available, was shockingly high, it peaked at 41,699 in 1995. So, other than the fact that coronavirus is airborne and has killed 518,000 Americans in the past year alone, perfect analogy!

The Arizona Daily Star reported last night on the debate over House Bill 2770 which reads, “Notwithstanding any other law, a business in this state is not required to enforce on its premises a mask mandate that is established by this state, a city, town or county or any other jurisdiction of this state.”

Since the former president’s refusal to endorse masks as a cheap public health measure solidified into party policy, the debate broke down upon familiar lines.

“Nebraska never had a mask mandate,” Chaplik said, adding that other states like Mississippi (false) and Georgia (true) had gotten along just fine without them. “I would think that based on these arguments these states would have dead people piled up all over their state because no one else would be living because no one has masks on.”

Leave aside for the moment that Nebraska, with a population density of 24 people per square mile might get less bang for its mandate buck than Arizona, which has 63 people per square mile, much less Phoenix, with a whopping 3,349 people per square mile.

Mississippi ranks fifth in the country (just ahead of Arizona) in per capita deaths, and is the only state in the top five off the hard-hit Northeast coast. So perhaps Rep. Chaplik’s celebration of the Magnolia State’s low fatality rate could use a fact check.

To which Republican Rep. Bret Roberts responded, “If they work, how are people still catching COVID?”

“Mask mandates are a textbook example of the government ensuring one of its fundamental purposes, which is guarding the public health and safety,” Democratic Rep. Diego Rodriguez argued, adding “What you are essentially saying is that [an] individual business owner has the right to place every other member of his community at risk of infection.””

But Republican David Cook, R-Globe argued that the bill protected sacred individual rights.

“It’s driven to the free-market and property rights issue given your constitutional rights to pursue your dreams in this country and in this state,” he said.

If any of his colleagues cited Jacobson v. Massachusetts, 197 U.S. 11 (1905) in which the Supreme Court affirmed that mask laws do not violate “your constitutional rights to pursue your dreams,” the Star did not report it. The bill passed along party lines, 31-28, and will now proceed to the Republican-controlled senate.

And the band played on.

ALERT TOP STORY AIDS argument used as Arizona House votes to let businesses ignore mask mandates [AZ Daily Star]

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

In-House Counsel: Tell Us About Your Outside Law Firms

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Above the Law is putting together our fourth annual list of the best law firms, according to you, the in-house counsel who have to work with them.

There are myriad ways of rating and ranking law firms, from deal tables to “profits-per-partner” to “prestige.” But there is no more crucial issue to firms than what clients — or potential clients — think of them. For Biglaw firms, the clients that truly matter are GCs and legal departments at America’s top companies.

So, in-house counsel, please give us your input. Please take this very brief survey and tell us which outside firms you use, and why they’re great (or… not).

Surrender to the System to Save Your Sanity

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At least fifteen years ago (maybe more), my husband bought a Garmin GPS navigational system for our car. Though I dutifully punched my destination into our new toy, I found myself deviating every time my printed-out Mapquest instructions or my own instinct conflicted and sent me on another route. As an end result of trying to meld Garmin and my own way of doing things, I’d wind up even more confused and lost than without the GPS. 

When I complained to my techno-savvy husband, I’ll never forget his advice: “just give yourself over to the GPS” he insisted. “Even if the instructions seem crazy or inaccurate, or even if it takes you a few miles out of your way,  it will always get you where you want to go and you won’t have to think about it.” And so I heeded my husband’s advice. Sometimes the GPS would take me on a beautiful path that I’d have otherwise missed.  Other times, such as on a trip to the beach, it lead my daughters and I on a frolic and a detour through desolate farmland in Delaware, adding two exhausting hours to an already lengthy drive. 

Yet overall, as it turned out, my husband’s advice was right. GPS, and now Apple and Google maps have improved in accuracy, enabling us to avoid traffic jams and to find gas stations and fast food quickly on long trips.  In short, navigational systems have grown so dependable that these days, directions are one less thing to think about; one more task off our plate that doesn’t require an ounce of mental energy.

That’s the value of systems in a law firm too.  Whether automated or just jotted down on a sheet of yellow legal paper that’s tacked to your wall, following a system can eliminate one more task on your to-do list. 

But there’s more to it than that. Because when you give yourself over to a system as my husband suggested so long ago, you also free yourself from the mental energy that comes with making decisions.  Here’s a great example that comes from President Obama himself in his memoir, A Promised Land.  In one chapter, Obama shared that during his presidency, he never had trouble making a decision and never second-guessed his decisions. Sure, there’s a healthy bit of arrogance to Obama’s admission but also common sense. Obama explained that for every tough decision, he had a process.  Rather than go with his gut (in which case, the decision would suffer from self-bias), he’d call in his experts to review the pros and cons and offer everyone at the table a turn to speak. Then, Obama would weight each side, make a decision and instruct his team to implement it.  Although many decisions that Obama faced were tough, he could always sleep at night, confident that the outcome was the right one because the process that produced it was so effective.  In other words, Obama was able to distance himself from the emotional upheaval that can come from focusing on output by focusing on what he could control: the process.

So how does this manifest in your law practice? Let’s take the example of quoting a price. Often when lawyers tell a prospective client how much a service will cost, the client may try to negotiate a discount – either pleading poverty or offering to send referrals your way if you show a little kindness. Often lawyers are sucked into the negotiations and either wind up offering a reduced rate or alternatively, turning down the business but feeling guilty at being unable to help someone in need.  So what if you were to think about your price as a system or policy – one that was developed with much reflection and research. Instead of trying to override your system  and muddy the waters, as I did with the GPS, just give yourself over to it and state firmly, “We set our prices with much reflection to the nature of our services and our market, and we do not deviate from the stated rates.” As with Obama’s reliance on a process to justify and distance himself from the outcome, here, by focusing on a well throughout out pricing policy rather than the outcome (i.e., not accepting a client), lawyers could mitigate some of the guilt that can come from turning a client away. 

When we talk about systems, we focus on time saved and order created. But rarely do we mention the saving of mental energy and complications and stress that arises from avoiding having to make yet another decision.  But those benefits only accrue if you surrender to the system.

Next Up At The Non-Event: Getting Your Docs In A Row 

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With the Above the Law Legal Tech Non-Event underway, we’re busy finalizing our next area, which will focus on document management, assembly, and PDF tools. 

We launched the Non-Event in February to bring the technology conversation directly to tech-perplexed lawyers. Our Non-Event is conducted in plain English, geared to meet a fully booked schedule, and has the aspiration of creating “fun” (within reason, of course). 

To get a jump on our doc management discussion, we’re providing some “intent data” compiled by Bombora, an Above the Law marketing partner. The word cloud below illustrates the document management topics that are foremost on the minds of ATL readers, based on increasing interest over the past 12 weeks. 

Over 146,000 Above the Law unique visitors are interested in rich text format, making it the top surging topic, with TIFFs, e-signature software, and contract management topics rounding out the top five.

Here are the numbers showing interest in the top 15 areas:

Bombora is the largest B2B data cooperative — an arrangement where numerous publishers pool anonymized user data to determine areas of interest for varied user groups and companies.

The resulting intent data reveals topics where research activity is accelerating among a subset of users — a possible indicator of intent to invest in this area. 

Stay tuned for the next installment of the Non-Event to do some research of your own. And in case you haven’t already, head over to our Practice Management section to give your current workflow a major upgrade.  

Law School Competition Is So Stiff This Year That Normal T14 Applicants Might Get Pushed Out Of The Game

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This is a year like no other. To give you some numbers, if you were applying to Georgetown with a 3.9 [grade-point average] and a 171 [LSAT score] last year, I would have said to myself, ‘This is real strong. I’ll probably say yes to this.’ Now, with the exact same applicant, you better have a reason for me to say yes or you’re not getting in, because I have plenty of you.

— Andrew Cornblatt, Georgetown University Law Center’s dean of admissions, commenting on the incredibly strong applicant pool the school has seen so far this year. According to the latest data from the Law School Admission Council, the number of applicants with LSAT scores of 165-169 was up almost 27%; the number of applicants with scores of 170-174 was up more than 53%; and the number of applicants with scores of 175-180 was up by 99%, which is almost unbelievable. “It breaks my heart that we can’t take some of these kids,” Cornblatt said. “We’ll put them on a waitlist and hope they hang around.”

Staci ZaretskyStaci 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.

The Ethics of Working from Outside Your State: PA Bars Adopt ABA Rule

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The pandemic has sent lawyers packing — to makeshift offices in their bedrooms, basements and attics. But what happens when a lawyer’s home office is located outside the state in which the lawyer is licensed to practice? Is it ethical for a lawyer who is licensed in one state to practice from a home office across the state line?

In a joint ethics opinion yesterday, the Pennsylvania Bar Association and the Philadelphia Bar Association concluded that a lawyer licensed in Pennsylvania may work remotely from another jurisdiction, even if the lawyer is not licensed in that jurisdiction, provided the lawyer takes appropriate steps.

In so ruling, the two bar associations adopted Formal Opinion 495, issued by the American Bar Association on Dec. 16, 2020, which held that a lawyer may practice the law authorized by the lawyer’s licensing jurisdiction for clients of that jurisdiction, while physically located in a jurisdiction where the lawyer is not licensed.

The ABA opinion included a proviso: The lawyer may not “hold out the lawyer’s presence or availability to perform legal services in the local jurisdiction or actually provide legal services for matters subject to the local jurisdiction, unless otherwise authorized.”

The two Pennsylvania bars agreed with the ABA’s approach and adopted it as the rule in their state.

“The Committees conclude that a Pennsylvania-licensed lawyer who lives outside of Pennsylvania in a state where he or she is not licensed may practice from a home office physically located in the other state provided that the other state does not treat such remote practice as the unauthorized practice of law,” their opinion said.

Both opinions turned on the interpretation of ABA Model Rule 5.5, governing unauthorized and multijurisdictional practice of law. Among other things, the rule says that a lawyer may not:

  • establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or
  • hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

Both the ABA and Pennsylvania opinions agree that a lawyer does not “establish” an office in a jurisdiction merely by working from a home office within that jurisdiction. As the ABA opinion said:

“A local office is not ‘established’ within the meaning of the rule by the lawyer working in the local jurisdiction if the lawyer does not hold out to the public an address in the local jurisdiction as an office and a local jurisdiction address does not appear on letterhead, business cards, websites, or other indicia of a lawyer’s presence.”

The Pennsylvania opinion agreed with this result, citing language from the ABA opinion that the purpose of Model Rule 5.5 is to protect the public from unlicensed and unqualified practitioners, not to penalize a lawyer who is “for all intents and purposes invisible as a lawyer to a local jurisdiction where the lawyer is physically located.”

Here are the full opinions:

Man Who Stormed Capitol And Broke Into Nancy Pelosi’s Office Pitches Fit In Court Hearing

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Richard Barnett (Photo by Spencer Platt/Getty Images)

You may not know Richard Barnett’s name, but you’ve seen his picture. He was one of the Capitol insurrectionists on January 6th and infamously broke into Nancy Pelosi’s office, posed for pictures sitting at her desk — sporting a stun gun — and with the Speaker’s purloined mail. He’s since been charged with a number of federal crimes, including aiding and abetting, disorderly conduct in a Capitol building, parading or demonstrating in a Capitol building, and theft of government property.

Barnett has pleaded not guilty to the charges, and has been held without bail — a fact he seems pretty pissed about. Appearing via video call from jail in front of U.S. District Court Judge Christopher R. Cooper, Barnett pitched a fit because he’s being held. When the judge set May 4th as the date for the next hearing in Barnett’s case, he could be heard complaining:

“I’ve been here a long time … another month … It’s not fair.”

And:

“They’re dragging this out!” he hollered. “They’re letting everybody else out!”

A recess was then called to calm Barnett down. When the hearing reconvened, Judge Cooper noted he’d consider a new motion for release, you know, if Barnett’s lawyers filed one.

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).

Authenticity And Motherhood

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(image via Getty)

Like any superhero, lawyer-moms sometimes feel like we live a double life. In one moment, we are patient and nurturing, and, in another, we are zealous advocates who won’t take no for an answer. Sometimes it seems the two responsibilities are entirely at odds. We might wonder if the identities themselves are irreconcilable, each defined by a warring set of skills and demands. We wonder if we could ever integrate the two — or just be ourselves.

Authenticity is immensely important to our performance and our satisfaction in work. We need to feel like we know who we are, we understand our strengths and values, and that we can make traction toward our own meaningful goals. We need to feel like we can BE who we are at work, bringing our wide range of talents and experiences to the table in addition to the legal skills we’ve honed. And, of course, within the boundaries of professionalism, ethics, and effective representation for our clients.

Lawyer-moms are tired of the old models. The archetype of the “man to see,” which looks nothing like us and serves almost none of our clients. The billable hour standard, which doesn’t reflect the value that we add. The expectation of shadowing a role model who lives a life we don’t want to emulate. The myth of a flat structure that rewards seniority rather than accomplishment and innovation. Those standards do not serve authenticity, and they make us miserable more often than not.

All lawyers need honesty and integration to show up authentically. We need margin and recovery to show up authentically. And we don’t need to give up professionalism — or boundaries — to accomplish this worthy goal.

Authenticity makes room for leadership without title, authority, or direct reports. When we show up authentically as ourselves, we are holding space for others to do the same. When we speak honestly about our skills and expertise, we can also be generous in lifting up other women. Just like we know our kids learn best when they see us model a behavior, so do lawyers.  Our kids are watching. So are our colleagues and our clients. Show them courage. Show them diversity. Show them compassion. Show them struggle.  Show them honesty. Show them grit and determination. Show them resilience.

Authenticity also leads to connection. There’s something about “we’re in this together” instead of pretending like we all have it together. We can have real conversation about priorities, strategy, and realistic expectations for productivity and results. After nearly a year of pandemic life, many of us are still holding ourselves to the standards of what we could accomplish in the old days. It’s unpopular to say, but lowering the bar can be a healthy step, acknowledging we can’t accomplish what we used to in a week. There is a way for us to add value and produce incredible results — high quality, lower quantity — alongside motherhood and self-care. When we have a real conversation about it, and allow some growth and variation from outdated standards, then there is room for progress.

The truth is, there are things about my life as a lawyer that make me a better mom. (At this point we’ve all been reassured of the benefits of being a working mom, yes?) But after months of doing both jobs with razor-thin margins, I’m equally convinced now that my life as a mom also makes me a better lawyer.

I’m not going to give you a list of “feminine qualities” and skills that translate well to compassion for our clients. The skills you bring to life as a mom and lawyer are unique to you and not universal. (True story: I’m empathetic but I suck at teamwork.). But I will encourage you to consider what they are, when they overlap, and when they are at odds.

There are times when the skills align beautifully. In my experience preparation, creativity, quick thinking, resilience, optimism, and patience have served me very well as a mom and as a lawyer. My clients appreciate that I am not quick to lay blame or point fingers. I’m ready to reframe and find a solution. I don’t get disappointed when it doesn’t go right the first time. We’ll try again! I know I have the legal chops, but I have so much more to offer. It feels good to let all of that goodness to the surface with confidence.

A simple step toward being authentic is to make a list of some of the strengths and tendencies that show up in your life: one column as a mom and another a lawyer. Maybe some things make both lists. Maybe some feel ugly, and others feel beautiful. But if all are true to you, you’ll be ready to more mindfully choose the energy you bring to each situation. And more courageously choose to show up authentically as a one whole, amazing lawyer-mom.

Laura Chipman is a marketing & privacy attorney and life coach for lawyers.  As a coach, she helps women lawyers live and practice intentionally.  As a lawyer, she takes pride in empowering her clients with practical and creative solutions to legal challenges.  Laura is also a mom to two boys and lives with her family in a 200-year-old farmhouse in rural North Carolina.  You can find more about her story at her website www.essentiallychip.com and chat with her on LinkedIn at http://www.linkedin.com/in/lauraschipman.  

If It Isn’t One Thing, It’s Another

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Literally right on the heels of the remote February bar exam comes the announcement that the California bar exam will be held remotely in July.   Hopefully, there will be no recurrence of the ridiculous overreach of the October 2020 exam, in which the examiners claimed that a third of the test takers cheated, and it was up to them to prove they didn’t. How easy is it to prove a negative? I’d ask how much further down the rabbit hole of absurdity the bar exam can go, but I don’t want Joe Patrice to answer the question.

I do have a solution to the “what can I bring to the bar exam” question. How about women can only take the bar exam when they’re past menopause? Ridiculous? Of course, this will eliminate all the patronizing state by state proclamations as to what women examinees can or cannot bring with them. Menstrual products? These arbitrary rules set down by bar examiners, should be dumped in the trash, just like every other stupid and discriminatory rule against women. Is it necessary that the ABA weigh in on this issue? It is way beyond the time to drive a stake in the heart of these stupid and arcane rules. Just imagine what the male late night TV hosts could do with this story.

And as for the male examinees, they also don’t have a walk in the park at bar exam time.  Is having to pee in a bottle really a good idea, a better idea, than being able to use the restroom and wash hands, which we have all been told to do ad nauseam during this past year? At least peeing into a bottle is better than the lack of choices that women have. Hand wipes and hand sanitizers are probably also a violation of something. People who are going to cheat will find a way to do so, and it’s insulting to most examinees who do the right thing.

These ridiculous policies are on a par with the “no more lawyer jokes” that the then president of the State Bar of California put forth 30 years or so ago.  Jay Leno, then host of the Tonight Show, mocked him mercilessly. Which is worse: being made fun of or taking the lead in not taking yourself too seriously?  You decide, but I have always thought that it’s better to be in control than not, and isn’t that one reason why all of us overachievers became lawyers?

Do you suffer from Zoom fatigue? I do, especially after I have had three or four Zoom calls in a single day. Fatigued in body and mind, these calls, which were once a novelty are now front and center in everyone’s life. I long for the days of phone calls. Yes, I know that I can turn off the video, but if I am the only one doing so, it feels a little strange. Phone calls are so much simpler and easier … no Power Point deck to look at, no checking out others to see if they are doing the same things I am doing (e.g., reading emails, drafting documents, etc.) I plead nolo.

The author of a paper on Zoom fatigue calls out four things: extended eye contact (do your eyes water?), more effort is needed when nodding and other nonverbal signals, the Hollywood Squares (remember that quiz show?) screen is unnatural, and my personal pet peeve: we can’t move around, which is why I bought a new seat cushion and lumbar back support. Clearly business expenses. He suggests some easy fixes. Since we don’t know how long WFH will continue or whether it will be back to the office at some point yet to be determined, now is as good a time as any to try them out.

For dinosaur lawyers in the Third Circuit, there may be a glimmer of hope. A 70-year-old orthopedic surgeon, who was sacked after a hospital merger, sued for age discrimination, and alleged, among other things, that his replacements were “significantly younger” and less qualified. The surgeon had several months of surgeries already booked at the time of firing. Naturally, the employer moved to dismiss, but the Third Circuit said, “not so fast.” The court found that the plaintiff had adequately pleaded age discrimination and that the issue of “significantly younger” was a factual issue awaiting discovery.

Ageism is still rampant. As a former employment lawyer, I understand the need for succession planning and the need to make room for succeeding generations. However, many dinosaurs still have a lot to contribute, and not just in billable hours. There must be some ways to make room for the older and the younger. Does anyone think that “resistant to change” is code for ageism?

Finally, as we start year two of what has been an unreal world for all of us, we need to take stock of who we are, who we were, and even perhaps who we hope to be.

The past year has shown us many things, among which is that we are not our jobs. Our profession, our jobs, are ways to support ourselves and those we care about, those who need our help, but our identities need to be more than just being lawyers. We are parents, sons and daughters, mentors, friends, volunteers, artists, writers, gamers, and the list goes on and on. We need to make sure that we discern the difference between work and the rest of our lives, and who we are as people, and not just as faces on a Zoom screen.

The last year has thrown a curveball (or a slider or fastball or sinker) into the whole concept of work-life balance. It’s up to us to determine how we hit the pitch or strike out.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.