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Good trial lawyers who serve their clients know that there is always some way to figure out a problem and do their best to win for their clients.

I was probably out of law school a solid decade and a half before I didn’t somewhat freak out when I encountered any entirely new problem or law or set of facts.

By this time, I’d had the great fortune to try dozens of cases, work on years-long investigations, and practice in courts and arbitral bodies around the country, on behalf of domestic and foreign clients of all shapes and sizes. In other words, I was not only somewhat seasoned, I was also fortunate enough to be very seasoned for my level of general experience.

Yet, I still had the issue that if something new came up, in a new case in particular — and I’ve been lucky to practice in all kinds of matters, so nothing seemed cookie cutter or just a repeat of what I’d seen before — I would, initially, be stressed: What laws applied? What did I need to investigate? What even makes sense for the client?

Finally, I wised up and looked back at my cases and realized that somehow my colleagues and I figured out how to proceed. We determined the relevant law. We counseled the clients to help them determine what their goals really were. And we decided how to proceed to achieve those goals. The point is that we figured it out. We found the solution.

Lawyers need to keep that in mind, especially when you practice at a firm like ours where the matters can be complex, based on years of history, in areas of law that change all the time: you will figure out the solution. I’m not saying the solution is obvious. It generally is not. That’s why there may need to be hours of research, discussions with colleagues, rejection of some initial ideas, and all of that.

However, to win for your clients — that is, to do your job as a trial lawyer — you need to enter a new, messy case with all the unforeseen facts, and not knowing the law, with the complete confidence that you and your team will figure out a solution. It will take lots of work, as any good result by a trial lawyer always does. But keep this attitude in mind and you will find the solution. Always.

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John Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at john.g.balestriere@balestrierefariello.com.

Arizona and Utah’s bold experiments relaxing the rules against fee-sharing with nonattorneys are in their infancy, but the prospects of these changes to Model Rule 5.4 are some of the most exciting we’ve seen in American law in years. To help me parse through the coming possibilities, I spoke last week with an ABA-certified Legal Rebel, law professor Bill Henderson. Previously named one of America’s 100 most influential lawyers by the National Law Journal, and America’s most influential legal educator by National Jurist Magazine, Henderson’s research focuses on applying cutting-edge metrics to the legal profession.

As might be expected, Henderson had thought-provoking takes on the new fee-sharing rules. As Henderson sees it, by relaxing or removing their local versions of Model Rule 5.4, Arizona and Utah are getting ahead of the curve on the inevitable next step in the evolution of law: productizing.

The Revolution Is Coming From Inside The House

Henderson doesn’t buy the argument that permitting outside investment into legal services will suddenly solve the long-standing problems of consumer access to legal service. “If we want to talk about access to justice, let’s talk about revamping the court system and carving out small stakes disputes and really ask ourselves, do we need to have in-person adversarial proceedings for cases that are worth $2,000? No. That has nothing to do with Rule 5.4.”

Instead of capital being the driver of access to legal services, Henderson sees the biggest innovations coming from existing law firms bringing technology and business professionals into the fold as equity partners.

“The advantage of relaxing the rules isn’t capital, it’s higher quality multidisciplinary collaboration. These business models take a long time to bake, so long that it scares venture capital and private equity. LegalZoom has been around for 20 years. Axiom has been around for 22 years. It’s a good business, but not disruptive. UnitedLex has been around for 15 years and hasn’t had a big liquidity event. These are long-bake problems. By relaxing 5.4, you can invite somebody into the firm as a technologist, and you can make them a partner. Now they’re in it for the sweat equity, and that can lead to better dynamics for these longer-term bakes.”

Bringing The Talent

Some of these tech-based innovations were already occurring in law firms, but they were naturally bottle-necked by Rule 5.4. Henderson gave me the example of Eric Wood at Chapman and Cutler.

As Henderson tells it, Wood “happened to be a lawyer, but he was a technologist. He scraped the internet for fantasy basketball data and became very good at analyzing data for fantasy basketball.” Wood approached his firm and proposed developing tools to automate their in-house products. For his first project, he automated largely nonbillable portions of the closing process for loans his firm was handling in a product called Closing Room. It was a smash success. Wood’s automation efforts lowered client closing costs, reduced the likelihood of errors in the documents, and slashed write-offs. Chapman and Cutler sold Closing Room to NetDocuments in 2018.

Wood made partner off the strength of his technological contributions, allowing him to participate in the upside he helped create. Because he was a lawyer, that was an easy move to make. The problem for the profession as a whole is that lots of people can create the tool that Wood did, but the vast majority don’t have a law degree. Why bother putting your brain power into making a bunch of attorneys wealthier for a salary when literally any other industry will reward your contributions with equity?

In Arizona and Utah, that hurdle no longer exists, meaning firms in those states can access a deeper talent pool than ever before.

Briefs, Burgers, And Bonuses

My conversation with Henderson kept coming back around to the concept of “productization,” the process of taking some abstract concept or bespoke service and converting it into a product that can be sold broadly to the public. A hamburger is a broad concept that can be made thousands of ways; a Big Mac is a product.

If you need an example in the legal field, consider wills. It used to be that the only way to get a will was to pay an attorney to draft one. Now consumers can buy a basic will off the shelf from LegalZoom or a number of other providers, and chances are it will work well for their needs. The will has been productized. Not much else in our profession has.

Henderson sees the law being productized, whether we like it or not. “This is one of the last stages of one-to-one consultative legal services. Yes, hourly billing is very lucrative, yes we’re lucky to have clients, but for today’s junior partners, this is going to start to break apart.” Some firms, like Littler in the employment law space, have already started making progress.

Law firms that productize their work and build tools to solve customer problems will reap rewards on multiple fronts. First, customers love new tools, and they love the predictability in their spend that productizing gives them. The legal profession hasn’t seen too many better mousetraps in the last few decades, so the law firms that build them stand to make bank.

Productizing services also tends to make them cheaper, which means that suddenly consumers and small businesses might find themselves with access to crucial services they previously had no way to afford. This, Henderson believes, is how relaxing Rule 5.4 ultimately responds to the access to justice problem.

Return Of The Firm

Intriguingly, law firms could find themselves regaining institutional strength that has largely been waning over the past decades. As I’ve discussed in this column previously, one impediment to law firms making long-term investments is that clients have become increasingly wedded to individual lawyers, rather than the firms themselves. Taking money out of the equity pool to invest in the firm increases the likelihood that the rainmakers paying for the investment may leave for a firm that will leave more cash in the pot. But if clients have fallen in love with a firm’s proprietary tools, suddenly both the client and the partner are more likely to stick around, which makes it easier to continue investing back into the firm itself.

Early investment in technologist-developed tools could initiate a virtuous circle that strengthens the firms smart enough to move early. On the flip side, Henderson argues, “the market is going to winnow itself here. There’s going to be a whole bunch of firms that are underinvested that are basically going to have to go into rescue merger mode. I think that’s going to play out over the next 15 years.”

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James Goodnow is the CEO and managing partner of NLJ 250 firm Fennemore Craig. At age 36, he became the youngest known chief executive of a large law firm in the U.S. He holds his JD from Harvard Law School and dual business management certificates from MIT. He’s currently attending the Cambridge University Judge Business School (U.K.), where he’s working toward a master’s degree in entrepreneurship. James is the co-author of Motivating Millennials, which hit number one on Amazon in the business management new release category. As a practitioner, he and his colleagues created and run a tech-based plaintiffs’ practice and business model. You can connect with James on Twitter (@JamesGoodnow) or by emailing him at James@JamesGoodnow.com.

Ed. note: This is the latest in a series on the changing practice of law, and the second focused on employment. Click here for the first. 

As the first anniversary of the worst public health crisis in living memory approaches, companies are turning to their labor and employment attorneys to cope with an ever-evolving assortment of issues.

Arguably topping the list: the rise of the work-at-home employee. 

“One of the big questions for 2021 and beyond is how much telecommuting is here to stay,” said Nicholas M. Reiter, partner and co-chair of the labor and employment group at Venable LLP in New York. “Now, what happens when an employee insists on performing his or her job remotely? We’re going to see what happens as the vaccine becomes more widely available, the infection rate slows down, and employers ask employees to come back to work.”

Gabrielle Wirth, a partner in the California and Montana offices of Dorsey & Whitney LLP, shares Reiter’s concern. 

Speaking at a webinar her firm conducted on COVID-19 liability, Wirth noted that “with many, many employees working remotely, it’s going to be harder to claim that you cannot provide remote work when people have successfully worked [that way] for a year.”

Of course, it’s a different story for essential businesses where workers have had to be on-site all along, “but the whole environment has now changed as to whether or not a reasonable accommodation for any disability would be the provision of remote work,” Wirth said.

Telecommuting can also drag employers into a thicket of reimbursement issues.

“An employee may have to use his or her own computer and their own internet,” Wirth said. “They may be on cellphones exclusively and so their cellphone bill now is . . . a hundred percent attributable to the employer.”

While not all states require companies to reimburse their employees, it’s the case in California, Illinois, and others, Wirth said. Such expenses may include something as obvious as office supplies to mileage for errands related to the job, like trips to the post office.“That’s become very widespread,” Wirth said, “claims for failure to reimburse for expenses.”

Wirth also said she’s seen a lot of wage and hour claims, although not necessarily related to telecommuting. For example, she’s seen lawsuits for failure to pay wages for the extra hours employees spend on security screenings like temperature checks.

COVID Leave

Lawsuits stemming from employers’ failures to provide paid sick leave have been common, according to Wirth, as has litigation related to the Expanded Family Medical Leave Act, a 2020 federal law.

“Many employers did not have policies in place,” Wirth said. “Now that we’re in a voluntary period under federal law, it’s become a state-by-state issue. Many states have gone ahead and extended that paid leave to go into 2021.”

She also noted that municipalities might have ordinances “as to how much leave you have to give for COVID-related exposure.” Companies may need to turn to labor and employment attorneys to revise their policies and make sure they comply with applicable laws.

According to written materials from the Dorsey & Whitney COVID liability webinar, healthcare providers face especially acute difficulties related to employee leave. The firm suggested they implement “a system for recording employees’ requests for leave and the reasons supporting those requests, i.e., an employee’s symptoms and the date for a test or doctor’s appointment.”

Like all employers, healthcare providers need to avoid personnel actions that could trigger discrimination or retaliation lawsuits filed by workers who asked for or availed themselves of COVID-related time off. “As always,” the materials said, “providers should properly document their termination decisions.”

Of course, companies have had to navigate federal economic stimulus programs as well as new rules regarding leave. 

“We advised a lot of our clients on payroll protection issues,” Reiter said. “We worked really closely with our legislative affairs and government affairs departments to advise our clients on eligibility for payroll protection funding and to be more forward-looking regarding what they’re going to do to make sure they remain eligible.”

The Vaccine

Probably the stickiest situation for employers vis-à-vis the vaccine is their duty to accommodate two groups of people, according to Wirth. 

The first group comprises those with a condition or a disability that makes the vaccine unsafe, and the second comprises those who refuse to take the vaccine for other reasons. 

For employers who want to make vaccination a condition of employment, Wirth recommends engaging in interactive processes with the two groups. Openness and documentation are key.

“If somebody has a medical reason, you not only have to go through the interactive process, but you have to take further steps, including [to examine alternatives] to having someone in the office,” Wirth said.

As for the non-medical vaccine refusers, Wirth points out that termination may not be necessary. 

“Just because you’re not letting them come back to work doesn’t mean you have to fire them,” she said. “Because this vaccine came about so fast, people are suspicious. It was an emergency use authorization, not the normal FDA procedure. One of the things you can do is keep them on a leave of absence, equal to family leave, while all of the evidence comes out as to how well the vaccine is working.” 

Douglas S. Lang, former state appellate judge and of counsel in the Dallas office of Dorsey & Whitney, said during the webinar that employers must reasonably accommodate people with religious objections to the vaccine — “and that has to be a real ethical or moral belief, not just somebody’s political belief.”

However, Lang wouldn’t rule out having to make allowances for these people as well. His colleague, Shevon D.B. Rockett, a partner in the New York and Philadelphia offices of Dorsey & Whitney, said at the webinar that employers and their attorneys should start to think through whether personal and political preferences regarding the vaccine have to be accommodated.

“The short answer is, if they refuse to take the vaccine for their own personal reasons, then you can terminate them,” Rockett said, although the statement comes with caveats.

“In some states, such as New York,” Rockett continued, “employees have a right to speak freely and engage in political activity.” 

This means debates related to civil liberties and vaccine mandates may be on the horizon. Vaccine refusal could very well become a protected political activity.

“That’s the nuance that we’re all looking at, and we’ll see how that unfolds in the coming weeks,” Rockett said. 

Employers may be able to protect themselves from claims of harassment or a hostile workplace by instituting clear protocols and making sure they are uniformly enforced.

“Of course, anyone can claim anything,” Rockett said. “But it will be a lot more difficult to be successful in that claim if [the employer shows] that uniformly, it is terminating people who are not taking the vaccine and that they are in positions that require the vaccine for safety and there are no other accommodations.”

One thing is certain: The fact that employment law intersects with civil liberties at the COVID vaccine illustrates the complexity of the issues. Employment attorneys may find themselves drawing on many areas of the law to properly serve their clients.

“We have a great practice at Venable with a lot of resources,” Reiter said. “That’s the beauty of being with a full-service firm.”

“Unprecedented” is sponsored by Practising Law Institute, which features a variety of timely offerings on employment law topics. These include the programs Understanding Employment Law 2021 and Employment Discrimination Law & Litigation 2021, as well as the publications “COVID-19 and Other Pandemics: Business and Legal Challenges” and “Employment Law Yearbook 2020.”

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Elizabeth M. Bennett was a business reporter who moved into legal journalism when she covered the Delaware courts, a beat that inspired her to go to law school. After a few years as a practicing attorney in the Philadelphia region, she decamped to the Pacific Northwest and returned to freelance reporting and editing.

(Elizabeth Gil, a recent graduate of Duke University School of Law and a member of United for Diploma Privilege, documenting the atrocities that law school graduates are being forced to experience thanks to the rise of the remote bar exam during the pandemic.)

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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.

Pour one out for Old Three Shirts. Fresh off reports from CNN that New York state prosecutors are also investigating Stephen Bannon for his role in a scam to crowdfund a border wall, the feds have told U.S. District Judge Analisa Torres that they’re not ready to let the defendant go just yet irrespective of his presidential pardon.

In a letter to the court yesterday, the acting U.S. Attorney for the Southern District of New York argued that Bannon’s 11th hour reprieve may eliminate the punishment, but doesn’t magic away the indictment or the evidence against him. Particularly since he didn’t bother to secure a pardon for his alleged co-conspirators and may be called to testify in the case against them.

“The fact that Bannon was pardoned does not extinguish the fact that a grand jury found probable cause to believe that he committed the offenses set forth in the Indictment, nor does it undercut the evidence of his involvement therein which the Government expects to elicit as part of its presentation at trial,” the government writes. “Were the Court to dismiss the Indictment against Bannon, it could have a broader effect than the pardon itself, among other things potentially relieving Bannon of certain consequences not covered by the pardon.”

The US Attorney is also demanding that Bannon’s lawyers docket the ex parte letter they sent to Judge Torres last week asking that their client be removed from the case.

“Bannon’s counsel submitted the letter to the Court by email—and therefore effectively under seal—because, in his view, ‘Bannon should no longer be a defendant in the case.’” they wrote. “However, until the defendant is administratively terminated, he remains a named defendant and more important, Bannon’s status in the case is not a basis to make his submission under seal.”

What are the odds that any of this would be happening if Bill Barr had succeeded in Saturday Night Massacring Jay Clayton into the top job at SDNY? (That’s a joke, the answer is ZERO.)

So, to summarize: Steve Bannon faces no jeopardy in federal court, but will still have to pay to defend himself there; Cy Vance is pawing through his financial records as we speak; and Bannon might well escape Otisville only to wind up in Rikers.

Well played, good sir!

SDNY Letter [via Law & Crime]

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

On Monday, the Biden administration started sending immigrant kids to an emergency shelter in Texas made out of trailers and a central tent. This triggered a highly predictable backlash, as did the news that they’re planning on opening another in Florida. The administration is defending this as necessary and temporary, and I hope to God they wouldn’t say that unless they think it’s true. But it can’t be denied that these shelters are bad for kids and also a deeply bad look for the president whose main selling point was always “not being Donald Trump.”

According to the Washington Post, the administration decided to reopen the shelter because the pandemic requires fewer kids per facility, and because the number of kids in custody is growing. That second thing is indisputably true; apprehensions of unaccompanied minors are up sharply since November, and the Biden administration has also started letting immigrants into our country, reversing the Trump policy of letting people die in Mexico because durrrr brown people scary.

It’s also great that they’re putting some space between detained kids. The Trump policy on that (until it was halted) was to stick them in hotel rooms that weren’t necessarily any safer, but did end run around the kids’ legal rights. And releasing the kids without finding an adult sponsor is both illegal and a terrible idea. Even the ones who are old enough to take care of themselves would be homeless in a foreign country and ripe for exploitation.

The trouble is that the temporary shelters are also an end run around kids’ legal rights. They are not state-licensed, which in itself is a violation of the Flores settlement, the document that (still, more than 20 years after Flores v. Reno was settled) is the only comprehensive outline of unaccompanied minors’ legal rights. The lack of state licensing, along with the temporary nature of the facility under federal rules, led to the Florida facility being credibly accused of hiring sexual abusers because it failed to background-check employees.

These facilities are also typically in the middle of nowhere, which means it’s very difficult for volunteer lawyers to get to these kids to try to help them. Homestead, the Florida facility, is not too far from Miami, but the Texas facility is two hours from San Antonio. And I can tell you from reporting on the 2014 “surge” of unaccompanied minors that ICE officers sometimes interfere further with immigrants’ right to counsel by denying lawyers entry for arbitrary reasons or making rules like “no computers.” (The interviews I did on that are old, but I have grave doubts that immigrants’ access to counsel got better under Trump.)

And, obviously, the optics are horrible. I’ve seen attacks on Biden from the left already, arguing that this “proves” he is no different from Trump. Nobody who is immersed in the details of immigration law thinks this, but it will undoubtedly work on people who want to believe. This decision is also, incredibly, coming under attack from Stephen Miller, who slithered out from under a rock to cry crocodile tears about “the cruelty and inhumanity of Joe Biden’s immigration policies.” Before you take this even sort of seriously, recall that Miller is the architect of family separation.

I agree with the Biden administration that the kids can’t be overcrowded during COVID-19, and I certainly don’t want them in Customs and Border Protection holding cells (which are the chainlink cages everyone’s familiar with from pictures). But for $775 per kid per day, the reported price of these civil-rights-optional trailers along the Rio Grande, couldn’t we instead pour resources into finding and clearing their sponsors? Must we do the same thing we always did, but under a fresh coat of paint?

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Lorelei Laird is a freelance writer specializing in the law, and the only person you know who still has an “I Believe Anita Hill” bumper sticker. Find her at wordofthelaird.com.

In this episode, I chat with Laura Leopard, founder and CEO of Leopard Solutions. We talk about Leopard’s recently rolled out ethnic diversity data in their law firm index and why it’s vital for the legal industry, we discuss the state of gender and ethnic diversity within the top 200 law firms in the US, and the biggest take aways from that work. We also talk about the newly launched Law Firm Transparency Directory and about transparency generally and why it’s so important to improving the legal industry. Laura also notes what data can raise a red flag for prospective employees — either from a law firm health perspective or something about a firm’s culture.

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 wore 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!

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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).

South Dakota Attorney General Jason Ravnsborg killed a man with his car back in September, but he mostly flew below the national radar until earlier this week when the Washington Post revealed that, early in the investigation, authorities discovered the dead man’s glasses inside Ravnsborg’s car, complicating his already tenuous claim that he simply couldn’t have seen what he had hit that night. As the investigators pointed out in interviews released by the South Dakota Department of Public Safety, “They’re Joe’s glasses, so that means his face came through your windshield.”

Ravnsborg felt that the release of this information amounted to an improper attack on his right to a fair trial and he sought a gag order to bar the state from releasing more information gathered during the investigation that makes him look bad. The State didn’t oppose this motion and the judge signed off.

On the one hand, Ravnsborg makes a good argument. Authorities should not be trying cases in the court of public opinion and he should be allowed to address all of this evidence at trial, with all the procedural safeguards that entails. On the other hand, prosecutors didn’t charge Ravnsborg with manslaughter or even leaving the scene of the accident — he’s facing three mundane traffic misdemeanors. With the softball treatment he’s getting from the government, there’s nothing in these releases that would seem to even bear upon his upcoming trial. He’s charged with an illegal lane change for heaven’s sake. Whether or not he recklessly left the scene of a killing, which is what the glasses revelation tends to suggest, wouldn’t prejudice a lane change charge.

Because Ravnsborg doesn’t really care about the criminal repercussions based on the charges from these spineless prosecutors, he cares about keeping his career on track. Governor Kristi Noem, who took a break from the nation’s second worst COVID disaster (congratulations North Dakota!) to call on Ravnsborg to resign, had planned to release more investigative materials in an effort to either force Ravnsborg’s hand or embolden the legislative push toward impeachment and removal. This gag order won’t change the outcome of his “using a mobile electronic device” trial, but it might well keep people from seeing whatever Governor Noem saw on Monday — when she claims she first looked at the case materials — that led her to seek his resignation on Tuesday.

Ultimately, this gag order doesn’t mean much right now. The legislature will do what it wants and the jury will dutifully peg him with the biggest wrist slap they can. That’s where we sit unless some dramatic superseding indictment materializes. Hopefully there aren’t any shenanigans that keep these materials away from the plaintiffs in the inevitable wrongful death suit.

Earlier: State Attorney General Told Officers He’d Hit A Deer… In Reality, A Man Is Now Dead
State AG Killed A Man And Told Cops He’d Hit A Deer, Will Only Face Misdemeanor Charges
Dead Man’s Glasses Found INSIDE South Dakota AG’s Car

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Yet another bill that would provide college athletes with rights to commercially exploit their names, images, and likenesses has been drafted by a member of Congress. Meanwhile, despite no lack of legislation on the subject, none of the sponsored pieces of legislation have progressed further than being announced and publicized.

The latest proposal comes from Sen. Jerry Moran (R-Kan.), who has unveiled the Amateur Athletes Protection and Compensation Act of 2021. Much like the other pending proposed bills, Moran’s legislation would prohibit the NCAA, athletic conferences, and universities from taking punitive action against a college athlete as retaliation for entering into a marketing contract with a third party. However, there are some elements within the bill that distinguish it from prior proposals.

One such distinction that may be met with curiosity is that Moran explicitly included a provision to clarify that college athletes shall not be considered employees of their schools, conferences, or the NCAA based on their participation in athletic events and competitions. While the regional director of the National Labor Relations Board (NLRB) in Chicago once ruled that college football players at Northwestern University who received scholarships should be considered employees, the NLRB later exercised its discretion to not assert jurisdiction and dismissed the Northwestern players’ petition to unionize, identifying that it does not have jurisdiction over state-run colleges and universities. Moran, and others such as the NCAA, may be concerned by the NLRB adding that its decision was to be narrowly focused on the players in that case and that it did not preclude reconsideration of that issue in the future. Moran’s bill would alleviate questions surrounding whether the matter may come up again.

Setting that issue of employee status aside, Moran did build in some worthwhile protections for college athletes that go beyond the basic name, image, and likeness rights that they so deserve. For instance, the bill contemplates that schools will be required to cover out-of-pocket medical expenses and secondary medical opinions for injuries and communicable diseases sustained or acquired while an athlete was engaged in competition. Additionally, institutions that enjoy athletic department revenues of at least $50 million will be required to provide healthcare coverage for such injuries or communicable diseases.

Furthermore, Moran’s bill would provide enhanced rights for athletes who wish to test the waters in a professional draft. Under the terms of the legislation, an athlete would be able to declare for a professional sport’s draft and still return to school as long as the athlete does not receive any compensation from the sports league, a professional sports team, a sports agent, another type of athlete representative, or any individual or entity affiliated with the aforesaid types of entities and individuals.

Moran also envisions creating a new Amateur Intercollegiate Athletics Corporation (AIAC), which would have subpoena power and serve as a clearinghouse for best practices with respect to the rights and protections of athletes who enter into contracts with sports agents and marketing deals. The AIAC would be available to provide guidance to athletes surrounding those types of contracts and coordinate with the Federal Trade Commission to enforce standards for reviewing and certifying athlete endorsement contracts such as ethical standards that would likely limit the industries and corporate entities available for athlete endorsements. It would also be tasked with establishing a formal certification process for sports agents, separate and apart from the existing state-by-state licensure of agents that currently exists. Governance of the AIAC would be by a board of directors, at least one-third of those directors to be current or former college athletes.

Overall, Moran’s proposal contains some pro-athlete elements and some features that may be of concern for athletes, such as the immense power that will seemingly be provided to this new AIAC entity. The best solution is likely one that looks at the myriad bills currently pending at the national level and extracts the policies that make most sense for a pure name, image, and likeness piece of legislation.

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Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

Biglaw firms across the country are implementing all manner of initiatives to bring attention to the importance of diversity and inclusion among their ranks. We’ve previously acknowledged Dorsey & Whitney, Hogan Lovells, Reed Smith, Cooley, Baker McKenzie, and Ropes & Gray as firms where approved diversity and inclusion-related work will be billable for attorneys and will count toward bonus thresholds. We’ve just received word that in the final days of Black History Month, yet another Am Law 100 firm rolled out a similar program in an effort to show just how dedicated it is to furthering diversity and inclusion within the legal profession.

Locke Lord —  a firm that brought in $496,433,000 gross revenue in 2019 — announced yesterday that effective January 1, 2021, attorneys at the firm will be able to receive credit for up to 75 hours of qualifying diversity and inclusion activities toward their annual billable hours requirement. Here’s an excerpt from the firm’s press release on its new policy:

The announcement closely follows several recent actions to further elevate and strengthen the Firm’s diversity and inclusion efforts. After achieving Mansfield Rule Certification 3.0 from Diversity Lab in 2020, which requires firms to consider a diverse slate of candidates for a defined list of roles, committees and leadership activities, Locke Lord is currently participating in the Mansfield Rule 4.0 Certification, which will conclude by July 2021. Locke Lord also achieved a 100 percent rating in the Human Rights Campaign Foundation’s 2021 Corporate Equality Index for the fifth consecutive year. A perfect score in this annual report evaluating policies and practices related to LGBTQ employees, culture and corporate social responsibility earns the Firm the distinction of being an employer of choice for LGBTQ employees.

Congratulations to Locke Lord on its commitment to diversity, and for offering its attorneys a way to create a more inclusive workplace. At 75 hours, the firm’s diversity billables are higher than almost every other firm that has announced such programming, save for Ropes & Gray (100 hours) and Baker McKenzie (125 hours). What an admirable way to support diversity and inclusion efforts.

Which firms will be the next to step up and do what’s right?

Locke Lord Announces Billable Credit for Diversity and Inclusion Projects, Furthering Firm’s Commitment to Diversity and Inclusion [Locke Lord]

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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.