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It’s hard to believe that we’re nearly a year into the pandemic. It’s been a long, arduous journey, and unfortunately there’s no immediate end in sight. The good news is that, overall, lawyers have adapted quite well to both the social distancing requirements and the unpredictable nature of the pandemic by adding new cloud-based tools to their law firms’ technology arsenals that make it possible for them to transition to remote work when needed.
However, as many lawyers have learned along the way, due to the confidential nature of their work, the practicalities of working remotely must necessarily conform to their ethical obligations. Fortunately, a number of different bar associations stepped up to the plate during the early stages of the pandemic and provided ethical guidance for lawyers to help ease the transition to remote work and ensure that lawyers protect their clients’ confidential information regardless of where they happen to be working on any given day. For example, I recently wrote about some of the ethics opinions regarding remote work and also rounded up recent developments regarding secure communication when working remotely.
Since I wrote those blog posts, the State Bar of Wisconsin added its two cents, issuing Wisconsin Formal Ethics Opinion EF-21-02 in mid-January. In that opinion, advice is offered regarding a number of different issues related to practicing law remotely, including the duty of technology competence and lawyers’ obligations to protect confidentiality and communicate securely.
Importantly, at the outset of the opinion, the committee wisely noted that because technology is always changing, it would not be providing specific requirements for remote work and instead would offer more elastic, overarching guidance.
Then the committee acknowledged that one of the more notable effects of the pandemic, which was to dramatically accelerate technology adoption by lawyers, would likely continue post-COVID. The committee explained that “technological advances have replaced many of these personal interactions, as well as other aspects of practice such as the transfer and storage of client information. In addition, it is expected that lawyers, like other professionals, will continue to work remotely in some form after the pandemic.”
Next, the committee addressed the duty of technology competence, and emphasized that lawyers must ensure that they stay on top of advancements in technology. According to the committee, basic technology competence includes, at the very least, “knowledge of the types of devices available for communication, software options for communication, preparation, transmission and storage of documents and other information, and the means to keep the devices and the information they transmit and store secure and private.”
Then, after focusing on a number of other overarching ethical obligations that are triggered when lawyers work remotely, including diligence, supervisory duties, and the unauthorized practice of law, the committee moved on to more practical advice. Specifically, they provided guidance in three areas: cybersecurity, training and supervision, and client preparation.
Because this section of the opinion is somewhat lengthy, I’m going to focus on the cybersecurity guidance. To that end, below you’ll find an edited version of the committee’s very useful list of cybersecurity best practices. Note that although I’ve provided a shortened summary of the list, there is lots more where that came from, so make sure to read the opinion in its entirety for lots of great advice and guidance on the ins and outs of running a virtual law firm.
So without further ado, here is the full list of cybersecurity best practices:
Finally, the committee concluded the opinion with a great summary of where we are, how we got here, and where the legal profession is headed in the future: “The COVID-19 pandemic has dramatically changed how lawyers work and represent their clients. Some of these changes may be temporary but others are likely part of a movement towards increased reliance on technology in the practice of law. As working remotely has become the new normal, lawyers must develop new skills and knowledge to comply with their core responsibilities.”
Nicole Black is a Rochester, New York attorney and Director of Business and Community Relations at MyCase, web-based law practice management software. She’s been blogging since 2005, has written a weekly column for the Daily Record since 2007, is the author of Cloud Computing for Lawyers, co-authors Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York. She’s easily distracted by the potential of bright and shiny tech gadgets, along with good food and wine. You can follow her on Twitter at @nikiblack and she can be reached at niki.black@mycase.com.
It’s been almost a year since much of the world went into lockdown due to the COVID-19 pandemic. For many of us, it’s been a difficult transition. We now have to deal with virtual schooling, remote work, constant childcare, and lack of face-to-face human interaction. Juggling all of this means that occasionally, we either forget to prioritize our mental health or just don’t have the time to do so. To make your mental health journey a little easier, we’ve compiled the top mental health takeaways from ACLEA’s Mid-Year Meeting.
Introduce Self-Care Into Your Routine Gradually. Trying to figure out where to start on your mental health journey can be daunting, but it doesn’t need to be. Instead of tackling everything all at once, attorney and coach Paul J. Unger recommends creating an Action Plan and incorporating new self-care routines on a weekly basis. For example, during Week 1, try focusing on bettering your sleep: go to bed at the same time every day, create a going-to-bed routine, try not to use screens in bed, etc. During Week 2, continue to upkeep your new sleeping habits, but try incorporating another self-care routine, like meditating for 15 minutes everyday. These Action Plans can be specific to you and you should create them in a way that fits into your current lifestyle and focuses on self-care items you’d like to work on.
Plan Something to Look Forward To. These days, it’s hard (and ill-advised) to plan something as big as a vacation or a get together with friends and family, but that doesn’t mean you can’t plan something else to look forward to. You could plan a stay-at-home date night for you and your partner, or plan a picnic for yourself in a local park with your favorite meal. Whatever you plan, having something to look forward to leads to positive anticipation, which counteracts boredom and can reduce depression and anxiety.
Get Regular Physical Exercise. Exercise to reduce anxiety and depression isn’t a new concept, but it can be hard to make time for it while juggling our other responsibilities and trying to stay home as much as possible. Regardless, getting even 10 to 15 minutes of physical exercise everyday can release endorphins, reduce negative thoughts, and help you gain confidence. If you can’t get to a gym or don’t feel comfortable going out for a run or walk, try doing some mat exercises like yoga or pilates at home.
Plan Your Whole Week. On the same day every week, try planning out the next seven days. This will help you manage your time better and prevent distractions during the week, and can also help you clean out your workspace, review all of your upcoming tasks and deadlines, and stay focused on goals, all of which can help reduce anxiety and overwhelming feelings during the week.
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Like with so many different agencies under President Joe Biden, the Centers for Medicare and Medicaid Services will look wildly different in the next four years than how it did under his predecessor. Helming this change will likely be the newly nominated administrator, Chiquita Brooks-LaSure, who is expected to focus on healthcare access and equity.
Though a date for Brooks-LaSure’s Senate confirmation hearing has not been set as yet, her nomination was referred to the Senate Finance Committee on Feb. 22, according to The Washington Post. For reference, former CMS Administrator Seema Verma was nominated for the role on Nov. 29, 2016, and confirmed on March 13, 2017.
Brooks-LaSure is currently managing director at Manatt, a national professional services firm. But she has plenty of prior experience in government. Previously, she served as deputy director for policy at CMS’ Center for Consumer Information and Insurance Oversight and director of coverage policy at the Department of Health and Human Services. If confirmed, she will be the first Black woman leading the charge at CMS.
One of Brooks-LaSure’s top policy priorities will likely be expanding access to healthcare and insurance coverage, said Jennifer Kreick, a healthcare attorney at law firm Haynes and Boone.
Brooks-LaSure’s interest in expanding access, especially through the Affordable Care Act, is well-documented. Just last year, she co-authored a paper published in Health Affairs on this topic.
Specifically, to extend access to care, she may make permanent policies initiated temporarily during the Covid-19 pandemic, Kreick said. For example, CMS waived certain Medicare coverage requirements for telehealth services to increase care access during the public health emergency. This included allowing Medicare to cover telehealth visits provided to beneficiaries in their homes in any area, as opposed to only covering telehealth when it was provided to people in designated areas and in a healthcare facility.
The new nominee’s focus on coverage expansion is likely to include encouraging states to expand Medicaid and take on innovation waivers that build upon the Affordable Care Act, said Cynthia Cox, vice president at the Kaiser Family Foundation, in an email.
“I suspect some states will want to explore public options, additional subsidies, or other politics that would increase affordability and coverage uptake,” she said “A supportive CMS can help make that happen through ACA waivers.”
This is in keeping with Brooks-LaSure’s paper in Health Affairs, which explored options to extend coverage to all low-income Americans and increase coverage affordability for those in the middle-income population. These options included increasing ACA marketplace cost-sharing subsidies and extending tax credits to people with incomes above the current eligibility threshold.
Access will not be Brooks-LaSure’s only focus. In the past, she has shown a strong personal interest in issues like maternal health, said Stephanie Kennan, senior vice president with McGuireWoods Consulting’s federal public affairs team, in a phone interview.
The racial disparities in maternal health outcomes in the U.S. are well-known, and in another paper that Brooks-LaSure co-authored she argued that Medicaid has a pivotal role to play in improving national health outcomes for pregnant and postpartum women.
Brooks-LaSure is likely to continue examining health equity issues in her tenure as CMS administrator, especially as it relates to improving quality, said Kenan, who knows Brooks-LaSure from her time as a part of Democratic staff for the House Ways and Means Committee from 2007-10.
The Biden administration has an expansive healthcare agenda and there is an urgency in implementing it amid the Covid-19 pandemic. This means Brooks-LaSure and CMS are in for a busy and challenging first year.
But Brooks-LaSure’s prior experience in government will hold her in good stead, as she knows the language of government, Kenan said.
“She’s been a congressional staffer, she’s worked in the White House, so she has seen government in both branches,” she said. “And I think that is really important for having an understanding about where you fit, and how you can assist, and how you can get other people to assist you in trying to further the Biden administration’s initiatives.”
Photo: kutubQ, Getty Images
Earlier this month, the ABA Commission on racial and Ethnic Diversity in the Profession released the ABA’s first ever Report ever on diversity and inclusion in the legal profession. After presumably thousands of dollars and hours, the Report reached the unshocking and obvious conclusion that…big law is overwhelming white and male. Imagine that! Yes, known to everyone but the clueless ABA, the Report white lawyers comprise 84 percent to 93 percent of equity and non-equity partners, the attrition rate for minority racial groups was two to three times higher than for white lawyers, and slightly higher for women than men. This is so even with the majority of law firms reporting that they have a policy on diversity, equity and inclusion in place.
What’s utterly laughable about the ABA Report including its restatement of the obvious is that as it turns out, the ABA lacks the moral authority to make pronouncements about diversity in the profession. Just last week, the Biden Administration announced that it would not restore the ABA’s role in vetting judicial nominees due to its subjective criteria and past practice of disproportionately finding women and minority candidates unqualified.
Diversity may be lacking at biglaw. But that doesn’t mean it’s lacking from other parts of the legal profession. This past September, my colleague Jeena Belil and I co-hosted the first Lawyer + Mom + Owner Summit, where an diverse and all-female cast of women law firm owners delivered one inspiring talk after the next of how they built their enterprises – from solo lawyers just starting out to women lawyers heading seven-figure law firms ranging in size from a half dozen to to fifty attorneys and team members. Firms like these have the potential to overtake biglaw entirely.
Reports like the ABA’s most recent project are window dressing, nothing more. We all know that the problem exists, and the reports merely delay any action to bring change. Indeed, many times, the reports operate as a substitute for change; an assurance that something is being done about the problem when it’s not. Instead of bemoaning the exclusivity of white male dominated law firms, let’s start encouraging women and lawyers of color to start owning firms instead. The ABA could put its money where its mouth is on diversity and fund an incubator to support women and minorities who seek to start law firms, particularly law firms that will compete with biglaw. The ABA could encourage or require in-house counsel to send work to women and minority owned firms and bypass biglaw entirely. And most of all, the ABA could publicly acknowledge the status of women and minority lawyers as partners and owners of their own firms on the same level as partners at biglaw – instead of looking past us and treating us as invisible women.
And now, in the words of our first woman of color and lawyer Vice President, let’s get to work!
I would hope that if the firm did what it needs to do to encourage our people—because we share a commitment to the firm and each other—that they would do that once it’s generally available and absolutely safe and there’s no other issues.
I hope we don’t get there. I think we can do it from an encouragement point of view.
— Winston & Strawn chairman Thomas Fitzgerald, in comments given about encouraging employees to receive COVID-19 vaccinations, during a roundtable discussion on the future of the law firm office. Although he’d prefer encouragement to be enough, Fitzgerald said he’s still not ruling out mandating vaccination for a return to the office.
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.
(Photo by Drew Angerer/Getty Images)
Former president Trump has said a lot of crazy sh*t about his taxes. In 2011, he tied them to the racist birther conspiracy, saying “I’d love to give my tax returns. I may tie my tax returns into Obama’s birth certificate.”
In 2016 he said “I’m under a routine audit, and it’ll be released. And as soon as the audit is finished, it will be released.”
“Maybe I’ll release them after I’m finished because I’m very proud of them actually,” Trump said in 2017. “I did a good job.”
In fact, Trump fought tooth and nail to prevent his returns from ever becoming public, enlisting the Justice Department to take positions on executive immunity so farcical that even Justices Kavanaugh and Gorsuch couldn’t keep a straight face. And on Monday, Trump ran out of road when the Supreme Court refused to entertain his argument that New York’s grand jury subpoena is illegal because Cyrus Vance doesn’t like him. (More or less.)
NBC was first to report that Mazars, Trump’s former accounting company, had forwarded “millions of pages” of financial records to the Manhattan District Attorney within hours of SCOTUS’s order list being published.
“As we have maintained throughout this process, Mazars will comply with all its legal and professional obligations,” a spokesman for the company told the Washington Post. FTI Consulting, the forensic accounting firm retained by the District Attorney to pore over the former president’s records looking for illegalities, will have their work cut out for them.
And now … we wait. Maybe there will be evidence of rampant criminality in those returns. Or maybe everything is by the book and Trump just tried to hide them because he’s given away so much money to charity that he didn’t want to embarrass Bill Gates and Mark Zuckerberg for their paltry donations. (Yeah, probably not.)
But in the meantime, as Vance pointed out in his response to Trump’s certiorari motion, the New York Times has already seen the returns and published a whole series of articles about them. So whatever happens with the Manhattan District Attorney’s Office, we already know that Trump is about to face a day of reckoning with the Joint Committee on Taxation, the bipartisan congressional panel tasked with reviewing all IRS refunds to individuals which exceed $2 million.
According to the Times, Trump took full advantage — and maybe more — of a 2011 change in the tax law which allow him to harvest old losses and claim a $72 million refund on the theory that he’d abandoned his entire $700 million interest in a failed Atlantic City casino and was entitled to write off the whole thing as a loss. Except, according to the Times, he retained a 5 percent stake in the property after it emerged from bankruptcy, meaning he might not have been entitled to get any of it back — there is no such thing as partial “abandonment.”
In his book, Trump’s former lawyer Michael Cohen describes Trump showing him a $10 million check and laughing, “Can you believe how fucking stupid the IRS is? Who would give me a refund of 10-fucking-million-dollars? They are so stupid!”
But perhaps he spoke too soon. The Times suggests that the Service noticed that little discrepancy when it did the preparatory investigation for the JCT. And while Steve Mnuchin might have been willing to intervene to stet the issue, it seems unlikely that Treasury Secretary Yellen will continue to do the same.
So if the IRS decides that Trump claimed an improper refund, he can either sue the service, which would make the entire return public, or cough up the $100 million for improper state and federal refunds plus interest and penalties. And that’s got nothing to do with Cy Vance or Letitia James.
Sucks to be a civilian!
Trump’s tax returns have been turned over to Manhattan district attorney [WaPo]
LONG-CONCEALED RECORDS SHOW TRUMP’S CHRONIC LOSSES AND YEARS OF TAX AVOIDANCE [NYT]
Elizabeth Dye lives in Baltimore where she writes about law and politics.
The Olympics logo (photo by David Lat).
It was clear that the United States Olympic and Paralympic Committee (USOPC) would take issue with Puma filing a trademark application to register “PUMA TOKYO 2021” and likely file an opposition against its registration if the application ever reached that stage of the process. Instead, the USOPC has decided to kick its aggression up a notch by filing a lawsuit against Puma in the U.S. District Court for the District of Colorado for trademark infringement and unfair competition.
The complaint, filed on February 23, begins with the USOPC describing its long-standing tradition of branding the Olympic Games with trademarks that combine the name of the host city with the year when the Olympic games will take place in that city. Examples are RIO 2016, SOCHI 2014, and LONDON 2012. Due to the COVID-19 pandemic, the TOKYO 2020 Olympic Games were postponed to July 2021; however, the branding will remain TOKYO 2020. The USOPC has also started building brands surrounding BEIJING 2022 and PARIS 2024, and has secured trademark registrations for each.
The complaint goes on to highlight that the Trademark Trial and Appeal Board has recognized that these types of trademarks uniquely identify the USOPC, including an opinion from 1999 that states, in part,
[W]e find sufficient evidence properly in the record clearly indicating that there has been widespread publicity for the Olympic Games so that we can conclude that the Olympic Games are well known to the general public; and that the general public is likely to be well aware that the 2000 Olympic Games will be taking place in Sydney, Australia. Thus, while the general public in the United States may or may not have seen the upcoming Olympic Games referred to precisely as “Sydney 2000,” we have no doubt that the general public in the United States would recognize this phrase as referring unambiguously to the upcoming Olympic Games in Sydney, Australia, in the year 2000.
The biggest issue with Puma’s ambush mentality is that it has the potential to seriously diminish the value for brands thinking about partnering with the USOPC. Certain sponsors are afforded the exclusive right to commercially exploit the trademarks, such as TOKYO 2020, in exchange for substantial consideration. If Puma is able to palm off of the goodwill of such a name without any compensation obligation, then it could cause potential partners to rethink whether spending money on sponsorship is justified.
Congress has even previously recognized the capacity for harm caused by ambush attempts of nonofficial sponsors. A 2014 Senate Resolution states that official sponsor support is critical to the success of Team USA at all international competitions and that ambush marketing adversely affects the United States Olympic and Paralympic teams and their ability to attract and retain corporate sponsorships.
The USOPC, in its filing, makes the claim that Puma has “declared war” on its trademarks. Its “declaration of war” is merely an attempt to benefit from an association with the Olympics without actually paying to become an official sponsor, per the complaint. Puma has filed trademark applications to register PUMA TOKYO 2021, PUMA TOKYO 2022, PUMA BEIJING 2022, and PUMA PARIS 2024.
It is not as if Puma and the USOPC were on good terms before this filing. The relationship between Puma and the USOPC could be described as tenuous at best. Puma has previously filed petitions to cancel seven trademark registrations for Olympic Games marks owned by the USOPC and separately filed a trademark opposition against a USOPC-owned trademark application.
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.
As the coronavirus crisis rages on across America, with deaths having reached more than 503,000 as of the time of this writing, Biglaw firms still seem to be employing a wait-and-see strategy when it comes to the vaccination of their workforces. According to CDC guidance, lawyers and legal professionals will be in the next vaccine distribution group, so law firms are quickly losing time to make decisions on their vaccine policies.
Thus far, only one Biglaw firm has stepped forward with a definitive course of action. At the end of January, Davis Wright Tremaine was the first Biglaw firm to announce a formal COVID-19 vaccination plan. While the firm is encouraging all employees who are eligible to be vaccinated to do so as soon as possible, only those who have been fully vaccinated will be allowed to enter the office or to attend firm-sponsored events. In the future, DWT will require proof of vaccination, and lawyers and staff members who are unable to be vaccinated due to a disability, advice of a medical provider, or religious beliefs will be able to explore reasonable accommodations with the firm.
With the month of February now almost over, other firms are now coming foward to announce their “likely” vaccination plans, if they have any plans at all — that is, the firms are not likely to mandate vaccination for employees to be able to return to their offices. The American Lawyer has the details:
Few Am Law 200 firms are mandating that their attorneys and staff get COVID-19 vaccines as the legal industry gears up for an expected return to the office by the second half of the year.
Fish & Richardson, McGuireWoods, Stoel Rives and Shook, Hardy & Bacon have said they will likely not require proof of vaccination as a condition to returning to their offices. Firms such as Proskauer Rose and Debevoise & Plimpton have yet to decide.
What’s the hold up here? Perhaps it’s just “too soon.” Mimi Moore, a labor and employment partner at Bryan Cave Leighton Paisner, thinks it may be a tad early for law firms to say that they’re in favor of mandatory vaccination, especially given the vaccine shortages in some areas of the country.
In the meantime, some firms like Stoel Rives are offering paid time off as a way to encourage employees to get vaccinated, while others like McGuireWoods will be tracking vaccinations in order to set up certain thresholds for a return to the office.
Which firm will be next to announce its vaccination policy? This is a matter of employee health and wellness that’s far too impotant for Biglaw firms to remain silent on for much longer. The Biglaw world is impatiently watching and waiting.
For Now, Few Firms Are Committing to Mandatory COVID Vaccination [American Lawyer]
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.
(Image via Getty)
Yes, February is waning and the temperatures in the Northeast are inching up bringing the first, fleeting glance of spring, but that doesn’t mean Biglaw is done with the 2020 bonus cycle. Lots of firms ponied up year-end and special bonuses already, but not every firm got on board.
Back in January, Cadwalader announced that employees would be reimbursed for the salary cuts they sustained in 2020, as part of the firm’s response to COVID-19. (in full for administrative staff without any billable requirements, and in full for legal staff who had billed 1400 or more client hours in 2020.) They also announced year-end bonuses matching the Cravath year-end scale for associates and special counsel — if they billed 1900 client hours. But there was no mention of the special bonuses that top Biglaw firms were giving out to associates.
Now, at last, comes word about Cadwalader special bonuses. According to insiders at the firm, Cadwalader told associates they’d do special bonuses, but they’d be black boxed, meaning there’d be no easy to understand schedule of how much associates would be given based on class year or hours billed or any objective measure. Instead special bonus amounts would be communicated individually.
Hmmmm, but what would that actually mean for associates’ bank accounts? Then came this detail from a tipster:
Cadwalader managing partner told associates that the new special bonus scale tops out at about half of the NY market rate. He tried to justify the cut by saying 2020 revenue was down 1.5% firm-wide, so CWT did not have a windfall year like other firms, despite a very busy and profitable year for some practice groups.
So no one at the firm will wind up with full market bonuses. From what we hear, associate reaction can best be summed up by this meme that’s making the rounds:
Remember everyone, we depend on your tips to stay on top of important bonus updates, so when your firm matches, please text us (646-820-8477) or email us (subject line: “[Firm Name] Bonuses”). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.
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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).