U.S. Attorneys’ Offices Hit Hard By Data Breach

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to the Department of Justice, what percentage of employees working in the U.S. Attorneys’ offices located in the Eastern, Northern, Southern, and Western Districts of New York had their email compromised by the Advanced Persistent Threat (APT) group responsible for the SolarWinds breach in December 2020?

Hint: They said this activity constituted a major incident under the Federal Information Security Modernization Act (FISMA).

See the answer on the next page.

What Lawyers Can Learn From Journalists About Writing: My WordRake Q&A

I recently had the great honor to be interviewed by Ivy B. Grey, vice president, strategy & business development, at WordRake, about lessons learned in journalism that can be applied in law.

The interview is now posted at WordRake, where we discuss what journalism can teach legal professionals about effective writing, interviewing, working with editors, and meeting deadlines, among other topics.

Check it out at WordRake: Journalist Q&A with Bob Ambrogi.

Learning Is A Never-Ending Process

Gone are the days when in-house lawyers can merely just do their jobs.

Among other skills, advocacy is a versatility perfected by many in-house lawyers. They increasingly advocate on behalf of others, for an
industry, or for change in the legal profession. In the process, they
build their own careers, contribute to their organizations, and even
change the world around them.

Unconscious Bias Against Women

Increasingly, many in-house lawyers have shone a spotlight on biases
against women. Helen Yoon candidly discussed her experiences with
these biases and how they impacted her self-esteem and career, as well
as sharing some advice for women on how to deal with biases when they
face them.

Biotechnology And What It Means

Other in-house lawyers have increasingly spoken up about changes in
industries and the directions in which they’re heading. For example,
if I were to ask you about biotechnology, you might give me a look and
explain, “I studied law, not science!” Fair enough. But, remember, law
relates to all fields, and we should try to keep our eyes and ears
open, so we can become better attorneys.

Darshan Kulkarni, principal attorney of the Kulkarni Law Firm and a
former in-house attorney, specializes in life science and health care.
He discusses the recent boom in biotechnology and the importance of
being patient-focused, making it crystal clear that lawyers who are
willing to roll up their sleeves can make a meaningful difference in
the biotech industry and their own careers.

Do You Like Your Job?

Whatever your job may be, whether you’re a lawyer, a teacher, or a
waiter, chances are that you’ve stopped and asked yourself if you
liked your job. After all, life is full of choices, and we tend to
gravitate toward the ones that make us happy. Punam Kaji, assistant
general counsel at the Ben E. Keith Co., talks about how to keep
at it, even if you don’t really like your job, providing pragmatic
insights and sharing real-life experiences.

The in-house lawyers are increasingly well-rounded leaders. They
advocate for change, move their companies forward, and impact the
world around them. They openly and candidly share their experiences,
model the changes they want to see in the world, and nudge their
organizations toward doing the right thing. It is increasingly
apparent that opportunities open to in-house lawyers offer a place to
grow, contribute, and make an impact.


Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.

The Worst Bar Exam Horror Stories From This Year

For as long as there’s been a bar exam, things have gone wrong for test takers. And when I put out a call for bar exam horror stories from the latest administration of the exam, well, Above the Law tipters came out in force.

And let me just say, y’all, I’m sorry. You went through the shit. By far the most common issue we heard was about was technical issues with ExamSoft — so much so that the ExamSoft debacle (and the aftermath) called for their own stories. But those weren’t the only issues that went down.

Like when your personal life interferes with test, and you have to deal with a hositalized child mid-exam:

I woke up at 3 am with nerves the morning of the MBE, so I was very tired to begin with. Then, as soon as I hit submit on my last set of MBEs and turned my phone on, I had a message from my husband telling me to call him. My youngest son fell outside and the brake handle of a bike hit under his arm, broke his rib, and made his lung collapse. We’ve been at the hospital all night. He’s going to be okay thank goodness, but I still haven’t been to sleep ???? —

Fire alarms can always be an issue, but this year it had an added twist due to remote exams:

The Florida bar exam was administered remotely this year, so my school (FIU Law) offered us the option to take the exam on campus in individual library study rooms. Most of the bar takers took the school up on its offer because we figured: if the entire school had some sort of wifi or connectivity problem, at least we’d be in the same boat as a hundred or so other students, and the Florida board of bar examiners would hopefully be more inclined to be accommodating if anything went awry. And awry it went.

Ten minutes into the third essay of the morning, the library’s fire alarm went off. We planned for a wifi malfunction, but the fire alarm?? My first thought was that it was a joke, albeit a bad one. Every bar taker instantly thought of the acknowledgement form we’d signed telling us not to break eye contact with the camera, which was proctoring each of us, and to report to the camera if there was any need to step away. So everyone started reporting to their cameras, something along the lines of: There’s a fire alarm! Do you hear it? It appears there’s an emergency?! I don’t know what to do? Okay I’ll stay and continue the test through the alarms—okay I can do it. I’ll die in this building. All the while thinking, DON’T BREAK EYE CONTACT WITH THE CAMERA.

Some people tried to ignore the alarms and continue. Others wandered the halls looking for a solution. Then the library staff started coming door to door, kicking everyone out of the study rooms and out of the library entirely. It was at this point that we fully panicked and also ran. Personally, I grabbed my computer and ran to the elevator (don’t ask me why it was still working through the fire alarm?), then ran down the stairs and out onto the grass, not because I was worried about any fire, but because the clock was ticking. I found a spot on a bench in a grassy area, showed my proctor that I was alone (and also panting and very sweaty), quickly twisted my face in an unsuccessful attempt not to cry, lamented the loss of time, and got back to writing, fighting off the ants that were making a new home in and on my computer. And, I was one of the lucky ones. Some sat in the grass completely surrounded by chatting undergrads who had also been evacuated. Some had people come up to them, taking advantage of the situation, to ask, “Can I have a minute of your time?” Unfortunately, no, literally not one minute. Still, others, in a moment of confusion and panic left their computers behind, and were left with only minutes to write their essays. Some fought the library staff and stayed in their rooms, through the blaring alarms and warnings to leave the building, willing to risk it all just to pass.

We’re all laughing about it now, because our worst selves are captured on camera and what else is there to do, but it’ll become much funnier, or not, on September 20!

Or this story, where…. everything just went wrong for one test taker:

This bar is where a bunch of things just went wrong.

A month before the exam I started getting severe hyper acidity due to stress. I’ve had to take days off studying cause I was literally throwing up as I studied. Bar exam day I was throwing up when I got the first password. I throw up before a few sessions and I dry heave several times during the exams.

As I’m answering my first MPT I realize that the AC wasn’t working, it was like 80+ almost 90 outside and I was sweating during my exam.

I suddenly need to pee 30 mins into an MEE question. I hold it in for an hour until the end of the exam, I rush into the bathroom and miss the toilet completely.

I’m on my last MBE question and suddenly my screen freezes and goes haywire. I can’t review and I just click finish and hope I don’t get flagged for anything.

This has truly been an ordeal and I’m just glad it’s over.

We’re sure glad you survive, and hopefully this will be the last time you have to deal.

If you survived or witnessed some horror story in action, let us know. You can email it to us (subject line: “Bar Exam Horror Story”) or text us (646-820-8477). Maybe your story will inspire others to persevere.


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

Why Aren’t More Biglaw Firms Mandating Vaccines For Lawyers And Staff?

I think it’s a combination of ‘big brother’ complex and fear of alienating some clients who are anti-vax.

— The unnamed leader of a New York law firm, who gave this explanation to Bloomberg’s Vivia Chen as to why more firms had yet to require employees to get vaccinated to return to the office.


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.

Did The Cleveland Indians Commit A Colossal Misstep With Rebranding To The Guardians?

At 9:35 a.m. on July 23, 2021, the Cleveland Indians’ Twitter account published a video featuring Tom Hanks where he announced that the Major League Baseball (MLB) team is rebranding to the Guardians. It concluded a period of a little more than half a year of the team conducting diligence after determining that the 2021 MLB season would be the last for the team to participate as the Indians. While it was initially reported that a change of name was imminent, it was generally understood that the organization wanted to take its time to clear intellectual property rights surrounding any substitute.

Thus, it is so bewildering that, on July 23, the franchise publicly announced its decision to modify its branding to the Guardians, seemingly without going through the necessary steps to ensure that all rights surrounding the mark were cleared.

As of today, the MLB franchise does not own ClevelandGuardians.com. In fact, it is owned and operated by a Cleveland-based roller derby league, which registered the domain name on June 25, 2014. While the website was largely dormant since March 31, 2018, it was updated on July 24, 2021 to indicate that the league is recruiting players for the 2022 season. That was one day after the baseball team decided to push out its announcement to rebrand to the identical word mark used by the roller derby league for many years.

The baseball franchise also does not own the Instagram or Facebook accounts for @ClevelandGuardians, which are also controlled by the roller derby league. The one social media account that the baseball team seemingly was able to lock up was @ClevelandGuardians on TikTok, which features the aforementioned video featuring Hanks’ voice.

Perhaps the strategy was for the baseball team to go ahead with purchasing Guardians.com, but even that domain has yet to be locked up by the organization. As of this article’s publication, the domain is listed on a marketplace that allows third parties to bid on its purchase.

What exactly happened here and who is to blame? It is not at all clear at this point, with neither the baseball franchise nor the roller derby team willing to speak publicly. That is probably because the parties are represented by legal counsel who are now trying to resolve what could be a major trademark battle peacefully and behind closed doors. That said, this all could have and should have been prevented by proactive measures taken prior to the baseball team making any public announcement, including Hanks’ popular voice or not.

To make matters even more interesting, on July 27, the roller derby league filed a trademark application with the U.S. Patent and Trademark Office to register the Cleveland Guardians word mark in connection with bumper stickers, coozies, apparel, and ornamental novelty pins, claiming a first use date of as early as April 2014 with regard to the sale of commercialization of jerseys. That obviously predates the baseball team’s use of any such mark in commerce and could cause quite the controversy unless the parties are able to come to a quick solution.

Ultimately, this could turn out to be a very expensive lesson in understanding the importance of clearing all intellectual property rights before publicly announcing a branding decision for a team worth $1.16 billion (according to Forbes).


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.

Less Office Space, More Vaccinations: The Workplace Of The Future

The fog in my crystal ball is slowly lifting. I’m beginning to see the future.

I see two things.

First, the future will involve less leased downtown office space.

Although companies are all over the lot, only banks seem to be requiring that all employees return to their offices full time. Curiously enough, only banks are massively dependent on the commercial real estate industry for their success. Banks lend to those in the industry, securitize loans, invest in real estate, and so on. I’m thus deeming banks to be the self-interested outliers who shout that everyone must return to the office. The rest of the corporate world is less biased and guides my vision of the future. What I overwhelmingly see is a hybrid model — a relatively few people will work from home full time; a relatively few people will work from an office full time; and the vast majority of people will go into the office only one or two days per week.

This will vary by worker, naturally. On the one hand, a restaurant’s wait staff or sales people in retail stores must be in their workplaces. On the other hand, employees of, say, tech firms can work remotely. At law firms, junior litigation associates — who learn a great deal by osmosis — will be in the office more often than 63-year-old M&A partners, who may never have to see a live human being again in their professional careers. Overall, however, the future is going to involve many fewer people being in the office full time.

This will drive up the cost of living in distant suburbs. Those far-flung homes will become more expensive because people will tolerate longer commutes if they commute only one or two days each week. This will thin out the crowds on the roads and on mass transit, because eliminating even a small percentage of travelers vastly eases the commute for everyone else. This will also reduce the number of people buying lunch at downtown restaurants and running errands downtown that can now be run near home.

Over time, this will also slowly reduce the demand for downtown commercial real estate. Office leases tend to run for a decade or more. They will come up for renewal only gradually over time. And some firms will be cautious and will choose not to dramatically reduce the amount of space they lease. But, generally, firms will need less space. They’ll lease less space. The value of commercial buildings will decrease, and players in commercial real estate will suffer.

Second, the future will involve more vaccinations.

City workers in parts of California and New York, certain federal employees, certain people associated with universities, some health care workers, and employees of several companies (including a few law firms) already must show proof of vaccination to be allowed to work from the office. The number of companies requiring proof of vaccinations is going to increase over time.

It’s tricky for the first-moving corporations to impose vaccination requirements on their employees, but it’s far easier for late movers to make the demand. And results will tell: Some people will be offended by vaccine requirements. But just a few outbreaks of COVID-19 at just a few workplaces will quickly change people’s minds. Getting vaccinated is, I suppose, inconvenient or somehow offends one’s principles; becoming seriously ill or dying is worse. Over time, people will appreciate employers who insist that their employees do what’s best for the employees’ collective health.

Governments may or may not take the political risk of imposing vaccine requirements, but private employers will worry less about politics and more about the health of their workforce. If governments won’t take the lead on requiring vaccinations, private employers will.

Over time, we’ll move to the workplace of the future: Most people will be vaccinated, and far fewer people will work from traditional downtown offices than they did in March 2020.

My crystal ball has spoken.


Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

Davis Polk To Deactivate Building ID Cards Of Unvaccinated Lawyers And Staff

Want to go back to the office? If you’re an employee at Davis Polk, that means you’d better be fully vaccinated — as soon as possible — because without proof, you will not be welcomed back to the firm. In fact, you won’t even be able to get inside the building because your access pass will be deactivated.

It turns out Davis Polk isn’t just a leader when it comes to compensation, but the firm is also a leader when it comes to the ramifications of going unvaccinated during the pandemic.

Many firms that have added vaccination protocol to their reopening plans have stated that the unvaccinated will not be allowed through their doors, but Davis Polk is the first firm we know of to put those words into action. If employees do not complete a vaccination attestation — which will include the type of vaccine received, dates of vaccination, and the vaccine lot number — by 11:59 p.m. on September 12, 2021, their Davis Polk ID cards will be deactivated and they will not be allowed to enter the building.

Davis Polk is still planning to reopen on September 13, and in a memo to all employees sent earlier today, managing partner Neil Barr said that while medical or religious vaccine exception requests would be reviewed, there is “no guarantee that a request will be granted.” Excluding a medical or religious reason, “no exceptions to the vaccination policy will be permitted.”

“We continue to monitor developments related to the Delta variant. We will apprise you of any changes in our return to office policy as circumstances dictate. For now, U.S. office personnel should plan to be present in the office during the week of September 13,” Barr’s memo said, adding, “I hope that this COVID-19 vaccination policy provides an additional layer of assurance to you and your families.”

With it’s strict vaccination policy, Davis Polk is making great efforts to protect its employees during these unprecedented times.

Will your firm be changing its plans when it comes to vaccination for attorneys and staff thanks to the Delta variant? Please let us know. The more information is out there, the more likely it is that firms will be able to establish a market standard for a return to the office.

As soon as you find out about the reopening plan at your firm, please email us (subject line: “[Firm Name] Office Reopening”) or text us at (646) 820-8477. We always keep our sources on stories anonymous. There’s no need to send a memo (if one exists) using your firm email account; your personal email account is fine. If a memo has been circulated, please be sure to include it as proof; we like to post complete memos as a service to our readers. You can take a photo of the memo and attach as a picture if you are worried about metadata in a PDF or Word file. Thanks.


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.

Rudy Giuliani Debuts ‘If You Think I Committed A Crime, You’re Probably Really Stupid’ Defense

Giuliani meets with Ukrainian lawmaker Andriy Derkach in Kyiv, Ukraine, Thursday, Dec. 5, 2019. Photo provided by Derkach’s press office.

“I committed no crime, and if you think I committed a crime, you’re probably really stupid, because you don’t know who I am,” America’s Mayor gabbled to NBC New York reporter Melissa Russo last week.

Presumably his lawyers will come up with something better than “Do you even know who I am!” if and when Rudy Giuliani is actually charged with a crime. The former prosecutor is currently under federal investigation for possible failure to register as a foreign agent after a year spent hobnobbing with Kremlin agents in a search for dirt on Joe and Hunter Biden.

“Is the guy who put the mafia in jail, terrorists in jail, Ed Koch’s commissioners in jail, and the worst people on Wall Street — I’m not going to file?” he chuckled derisively. “I mean, that’s just crazy.”

In point of fact, he did not file, electing instead to insert a clause in his contracts with foreign entities describing the work as ALL LEGAL, NO LOBBYING. Which may or may not convince the Southern District of New York that everything was totally kosher. It’s unclear how he’s going to earn a living now, since he’s been suspended from the practice of law in New York and DC and can no longer claim to be doing very serious top secret lawyer stuff for his overseas clients.

For what it’s worth, Ukrainian heavy Pavel Fuks was very clear that he’d hired Giuliani as a lobbyist, not a “security expert” or “lawyer.”

“I would call him the lobbyist for Kharkiv and Ukraine — this is stated in the contract,”  Fuks told the New York Times in 2019, adding, “It is very important for me that such person as Giuliani tells people that we are a good country, that people can do business with us. That’s what we would like to bring to America’s leaders.”

And indeed, Our Rudy did manage to shine a bright light on Ukraine and its leaders. Although, perhaps not quite in the way his clients intended.

Knowing that a retired federal judge is poring over every document on his hard drive after the feds raided his office, might cause a normal person to become a little circumspect. But not Rudy Giuliani, who agreed to speak with reporters for a story about the upcoming 20-year anniversary of the September 11 attacks, then immediately skipped ahead to the Festivus Airing of Grievances.

“I am more than willing to go to jail if they want to put me in jail. And if they do, they’re going to suffer the consequences in heaven,” said the holy martyr. “I’m not, I didn’t do anything wrong.”

Which seems a tacit acknowledgement that divine intervention (or retribution) might be the only option left for Giuliani, now that he’s been abandoned by his holy savior on earth. Because with all the many millions of dollars Donald Trump is hoovering up from the rubes — although not as many as he’d have us all believe — he doesn’t have one single greenback to spare for his old pal Rudy.

Even though, according to Times reporter Maggie Haberman, Rudy’s pals say he’s “close to broke,” he’s permanently on the outs because “Trump aides have been clear they see no mechanism for paying Giuliani’s legal bills that isn’t problematic for Trump, and they think Giuliani took actions a lawyer should have known were problematic, even if the client wanted it.”

Ya think?

But Giuliani remains defiant, telling NBC of his persecutors “they lie, they cheat,” but nonetheless “I believe I will be vindicated.”

Well, good luck to him!

‘Willing to Go to Jail’: Rudy Giuliani Calls Ukraine Investigation ‘Lawless’ [NBC New York]


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

More Biglaw Firms Mandate Vaccines For Lawyers And Staff

Much progress has been made in America’s many battles against COVID-19, but thanks to the Delta variant, we’ve not yet won the war. In a world where the pandemic rages on vaccination seems to be our only defense, and more and more law firms are now mandating vaccines for employees to return to the office.

Thus far, the firms that have made vaccination a requirement for those returning to the office include CooleyClifford ChanceDavis Wright TremaineDickinson WrightFenwick & WestHanson BridgettHogan LovellsHueston HenniganLowenstein SandlerMintzPaul WeissSanford Heisler, and Weil Gotshal. Now, we can add another two firms to the list. Arent Fox and Davis Polk both recently added a vaccination mandate to their safety protocols.

As reported in the National Law Journal, while many firms declined to comment on their vaccination policies, and some said they were “monitoring the situation,” a few have spoken out about their new requirements.

Last Thursday, Davis Polk said that it would be mandating vaccination for lawyers and staff members. Considering the new mandate, COVID-19 testing will no longer be required for unvaccinated employees — as the hope, apparently, is that there will no longer be unvaccinated employees at the firm.

Arent Fox said this past Friday that “due to the clear and present danger of the delta variant for both unvaccinated and vaccinated people,” the firm will now require all employees to be fully vaccinated by September 6. All attorneys and staff must provide proof of vaccination.

Will your firm be changing its plans when it comes to vaccination for attorneys and staff thanks to the Delta variant? Please let us know. The more information is out there, the more likely it is that firms will be able to establish a market standard for a return to the office.

As soon as you find out about the reopening plan at your firm, please email us (subject line: “[Firm Name] Office Reopening”) or text us at (646) 820-8477. We always keep our sources on stories anonymous. There’s no need to send a memo (if one exists) using your firm email account; your personal email account is fine. If a memo has been circulated, please be sure to include it as proof; we like to post complete memos as a service to our readers. You can take a photo of the memo and attach as a picture if you are worried about metadata in a PDF or Word file. Thanks.


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.