Category: News Feeds

Since his departure from the TV host’s White House and frankly successful replacement by another TV host, the doors of high finance haven’t exactly been swinging open in Gary Cohn’s direction. Certainly there was going to be no place for him at his old stomping grounds, even if his stint as head of the National Economic Council hadn’t been such a consistently embarrassing disaster, which it was. But there doesn’t seem to be much of a place for him anywhere else, either, aside from the golf course, the academy, Steve Cohen’s house and the occasional media appearance. Not at Wells Fargo. Not at Tesla. Not even, apparently, at the hedge fund he so clearly had his eye on when hammering out that tax plan with Steve Mnuchin.

Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome Winter Wheeler to our pages.

When the COVID-19 quarantine first started here in Georgia, I was … amused at the absurdity of being an ambitious lawyer and mediator confined in a house with my four young kids. Yet, I was also desperately trying to figure out how I was going to make all this at-home time work. So, I turned to writing, both to help make plans and to document how I was responding emotionally to the new normal.

Recently, I reread some of my words to remind myself of the self-care I had employed along the way, as preparing for pandemic-style back-to-school had me feeling incredibly out of sorts. I presumed the exercise would be a quick refresher; however, the reading spurred a more thorough reflection.

At the start of the lock-down, I was a confessed perfectionist, obsessing over the tiniest, most inconsequential details in outlines, blog posts, and even e-mails. But after one month, I found I did not have the physical or emotional bandwidth to maintain self-imposed perfection. Going over my writing — and my clearly intense feelings of doubt concerning my ability to maintain my career and also mother full-time — made me feel noticeably sad; for next to my honestly insightful words of self-reflection I would go on to flippantly joke that my family and career were moving forward based purely on luck.

I will never denigrate my true feelings and my true effort like that again.

I am succeeding with my family and career because I work incredibly hard. I support the remote learning of three small children, care for a toddler, work full-time and serially volunteer, providing me with real-world evidence that in the middle of a pandemic I can thrive. There is power and a sense of well-deserved merit in my ability to recognize this truth.

I also recognize that I arrived at this point by being self-aware about my strategies for self-care, which have helped keep me and my family grounded.

In Any Given Situation, I Will Not Do More Than What I Or My Family Need And Genuinely Want

Like many of us, I was blindsided this past March by having to suddenly adopt remote schooling — and my kids were so discombobulated after being ripped from their routines that they were extremely resistant to learning. But with a new school year, I am feeling compelled to try my very best to keep up with the schoolwork while working full time.

To-do lists remain critical in staying on task and panic free. And now that I have so much more on my plate, I have added a system of color-coded notebooks for each child and each of their special projects. My past perfectionism would have had me juggling several notebooks and self-generated anxiety at the same time. Now, I take out just one notebook, leaving the others behind while I get busy completing what one person and one family can realistically accomplish in one day. And at the end of that day, I know I would rather slow down our pace than strain the parent-child relationship with daily school battles. I refuse to push any of us further than is reasonable.

I Will Focus My Efforts On What I Can Believably Solve — And Ignore What Seems Beyond My Control

For this school year, I am resolved to not worry about what I cannot affect positively. And I am strengthened by the results of this mindset. My initial fears that I would have to scale back my business have proven unfounded. I am mediating cases both virtually and in the office. The kids have grown accustomed to being quiet and staying away from my in-home virtual mediation set, with “webinar” and “Zoom meeting” now being terms my kids commonly use. My children’s adaptability has given me the space needed to expand my business. So, what seemed insurmountable five months ago now feels par for the course.

I Will Ask For Help And Encourage My Family, Friends, Colleagues — And Yes, Even You — To Do The Same

I believe that I have thrived during this period because I have been willing to ask for help. I now shoulder more housework, so other tasks such as bookkeeping and making doctors’ appointments must be outsourced. And I am okay with that. My goal is for my family to emerge on the other side of isolation with our mental health intact and if it that means I must rely on a team of people, so be it.

And Lastly, A Note About Allowing Ourselves The Same Grace We Readily Give To Others

This principle has been hard for me to consistently implement but I continue to work on it, and I am proud of the growth that has resulted. As I have put in the effort, my kids have also risen to the occasion and afforded me the grace that I need and deserve. My kids have proven themselves to be far more selfless than I imagined a two-, four-, six-, and nine-year-old could be, and I am humbled by their resiliency and empathy. And as I reflect, I know this this to be the ultimate, most beautiful surprise of attorneying at home.

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Winter Wheeler is a civil litigator turned full-time mediator based in Atlanta, Georgia. Winter left big firm life to build a full-time mediation practice right before the pandemic struck. She quickly pivoted from solely providing services in-person to strictly offering services online for a time. She was able to pivot so quickly, in fact, that she was sought out by several law firms to teach their lawyers how to translate their usual mediation preparation and presentations to the online forum. Winter has become a vocal member of the legal community urging litigants to use the online mediation tools available to them to keep their cases moving forward. In addition, she has become a significant voice in the dialogue regarding whether binding virtual jury trials are a reasonable option in this most unusual time. 

We lawyers are supposed to be rule followers. We read the court rules and are expected to follow them to the letter, except when we don’t. Why not? Do we think the rules don’t apply to us too, that we’re somehow exempt, or that we can ignore them just this one time because well, just because, and we have a good reason for flouting them?

I don’t know about you, but I hate footnotes. To me, it disturbs the flow of the writing when I need to look down at the bottom of the page for a footnote to explain something to me. It’s akin to “Hey, you, since you obviously didn’t get the point in the text, I will explain it to you in greater detail in a footnote.” In a 1985 essay, Judge Abner Mikva, then a judge on the D.C. Circuit, made it clear his dislike of footnotes, calling them an “abomination.” Make sure you read this link to the end, especially footnote 4. Mikva was right on.

The battle about footnotes continues to this day with a federal judge benchslapping the DOJ for excessive footnotes.

Here’s a benchslap that is a little bit out of the ordinary, and it doesn’t involve footnotes. Normally, ATL benchslaps when a court chews out counsel for one reason or another. It can be for excessive use of footnotes (see above) or something more egregious like setting a motion during the early days of the pandemic.

I have a different kind of benchslap to report: this is one where the reviewing court took the lower court to task for several errors that could have been avoided but weren’t. Yes, I understand that it’s the job of the appellate court to review what the lower court did or did not do but rarely is the case returned to a different judge. In this case, a pro per judgment debtor made several post arbitration motions, including one that would have allowed her to appear by phone since she lived out of state. All her motions were denied.

While the kerfuffle was pre pandemic, in a recent opinion the appellate court benchslapped the trial court, finding that its actions were inconsistent with California law, especially the one that allows litigants to participate in court proceedings telephonically. That slap is bad enough, but there’s more. The Court of Appeal specifically said that “… in the interests of justice all further proceedings shall be heard before a trial judge other than the judge whose orders are affected by this decision.” Ouch.

Here’s another thing I don’t understand. This is 2020, and although it’s a year that most of us want to forget, we can’t forget that inappropriate conduct is still a no-no. The pandemic has not changed that.

Several recent examples: a Pennsylvania judge has apologized for calling a domestic abuse victim a “little blonde honey … and too dumb to leave her alleged abuser.” Now the woman has been victimized twice. Although the court granted the women a protective order that she had sought, the Pennsylvania appellate court found his remarks “shocking, sexist, offensive, and egregiously inappropriate.” Coming to the judge’s defense, in a manner of speaking, the attorney representing the woman said that while her client didn’t like the judge’s remarks, she thought it was a “generational thing,” since the judge was in his 70s.

So, a judge in his 70s is ipso facto going to engage in sexist comments? Is that ageist? I thought that sexist, demeaning comments know no age.

Removal or retirement? Those are the choices for a Massachusetts judge accused of groping a court employee at a court-sponsored event. The hearing officer found not only that the judge had engaged in the claimed misconduct, but even worse was the finding that he lied during the investigation. One of the problems with lying, as I am sure we have all found out with clients from time to time, is credibility. Was the witness lying then or is he lying now? So, what is it with some judges that they can’t STFU or they can’t keep their hands to themselves?

A high-speed chase in the Florida Keys ended with a suggestion that the lawyer and the arresting officer go out for pizza. The lawyer, who had been a partner with a firm in Fort Lauderdale (notice the past tense) told the cops that she was with a big law firm and hung out with celebrities. The lawyer also said that she was a “great litigator and knows how to get stuff done.” Isn’t that the job of every lawyer, knowing how to get stuff done? But pizza? Was she going to pick up the tab?

The slicing and dicing (aka whacking) of lawyers has started. Rahm Emanuel, President Barack Obama’s first chief of staff and subsequently mayor of Chicago, said, “You never want a serious crisis to go to waste. And what I mean by that is an opportunity to do things that you think you could not do before.” Biglaw firms are taking that advice to heart and are now starting to cut loose both equity and nonequity partners. It’s not going to be pretty.

I think this is just the beginning of “right sizing” or “reductions in force,” by aligning firms with the new realities of legal practice forced upon them by both the pandemic and innovation. The British call layoffs “redundancies.” I call them heartless amid a pandemic. God forbid that there should be a sharing of the economic pain in this time of great pain.

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

As the COVID-19 pandemic continues to explode in new hot spots all over the country, correctional institutions are sites of particular concern. Between overcrowding, lack of sanitation, and a total inability to socially distance, prisoners in America’s jails and prisons, as well as the staff inside, are at significant risk of contracting the virus.

Attorneys with incarcerated clients have been sounding the alarm on this civil rights crisis for months, attending court both in person and virtually to try to get people out before they get sick. In the recent CLE program COVID-19 in Jails and Prisons: Civil Rights Litigation in Response to the Crisis, ACLU attorney Andrea Woods discussed the legal theories behind COVID-related prison litigation, some recent decisions in these cases, and practical arguments criminal and civil rights attorneys can use to protect incarcerated clients. Check out her insights below:

1. Cruel and Unusual Punishment. Under the 8th Amendment, attorneys  need to show that (1) the jail or prison condition amounts to an “objectively intolerable risk of harm”, and (2) prison officials knew of and recklessly disregarded the excessive risk of harm to health or safety. This argument is most effective for prisoners who are medically vulnerable.

2. Americans with Disabilities Act and Rehabilitation Act. This argument is also valuable for medically vulnerable prisoners, for whom release or transfer to home confinement should be considered a reasonable accommodation.

3. Prohibition on Pretrial Punishment. Under the 14th Amendment, the only legitimate purpose for pre-trial detention is to prevent flight risk or a serious threat to public safety – not punishment. In the COVID era, diligent defense attorneys need to be pushing the government to prove that pre-trial detention is serving one of these objectives.

4. Habeas Corpus Petitions. Under 28 U.S.C. §2241, prisoners can file writs of habeas corpus arguing that their continued custody violates their constitutional rights. Federal courts may require this relief be pursued in state court first, but public health and safety concerns may allow the exhaustion requirement to be waived.

5. Section 1983 Claims & the PLRA. Under Section 1983, litigants may seek injunctive relief to remedy conditions in jails and prisons that make them less safe. However, the Prison Litigation Reform Act (“PLRA”) applies to these cases, which creates some procedural hurdles, including exhausting all administrative remedies, and the requirement that release orders may only be administered via a three-judge panel.

Watch the full program through our free trial to learn more!

This article was prepared with assistance from Elsie Tan, a student at New York Law School.

Related Content:  

1. Biven Claims for Prisoners and Detainees After Ziglar v. Abbasi
2. Pro Bono Strategies in Emergency Response to COVID-19
3. Free Webinars to Help Attorneys During the COVID-19 Pandemic

Louisiana is, without a doubt, approaching its bar exam with more professionalism and common sense than most jurisdictions. The state supreme court has already instituted a quasi-diploma privilege system allowing anyone who graduated either in the Spring or last December from an ABA-accredited school, and had not previously sat for the exam, to skip the written bar examination with the caveat that they complete some additional post-licensing requirements. So take all of the following criticism with context in mind.

Even after the court’s order, there are some applicants who will still need to take the exam. In this case, a one-day, open-book, remote test. That test was scheduled for August 24, but due to the two hurricanes descending upon Louisiana at the time, they wisely put off the test to allow examinees to concentrate on the more pressing need to evacuate or otherwise batten down the hatches.

Unfortunately, they delayed it only until next Monday, meaning the folks who woke up this morning to massive flooding and terrific wind damage have to get their heads back in the game for a test in four days.

More than half a million people are without power! There are doubtless some additional broadband outages across the state too.

I’m a big believer in keeping delays to a minimum. Examinees shouldn’t be forced to hold this useless information in their heads for too long — though an open-book exam helps on this count! — but might we be jumping the gun to ask them to take a licensing exam less than a week after a storm described as “unsurvivable”?

Maybe?

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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.

It’s hard to believe that the current pandemic has been with us for nearly six months — and will likely be around for months, or even years, to come. As the COVID-19 pandemic continues to surge in some parts of the country, you’re no doubt wondering about the future of your law firm and its book of business.

One way to abate those concerns is to prioritize preparing your firm for whatever may come. Make sure you’re never caught flat-footed and take steps to ensure business continuity no matter what happens. Why? Because that’s the only way to ensure future success and stability.

The Importance Of Future-Proofing Your Law Firm

Future-proofing is a top concern for the majority of law firms. In fact, according to the 2020 ILTA Legal Technology Survey, 75 percent of responding firms indicated that their firms have disaster plans in place (up from 56 percent in 2014), and 22 percent of respondents shared that their firms are currently working on a disaster plan.

Of course, building business resiliency into your firm is more than simply creating an emergency response plan. The end goal is to ensure that not only does your firm get up and running quickly, but that it is also able to operate smoothly and efficiently in the weeks and months following a disaster without skipping a beat.

Future-proofing ensures that your firm is able to rapidly pivot and adapt to unexpected disruptions, thus allowing it to continue to operate and represent your clients’ interests even in the face of uncertainty. A major part of future-proofing your firm includes assessing risks to your firm’s business in the event that different types of disruptions occur. Typical business disruptions faced include pandemics, natural disasters, power and utility outages, and cyberattacks.

While this may seem like an overwhelming — or even impossible — task, it’s actually more attainable than you might think, especially if your law firm has a solid plan in place that includes the necessary technology.

For example, will your firm be able to keep the lines of communication open between its employees, the courts, and clients no matter what happens? Does your firm have technology in place that will allow convenient and immediate access to important case-related information even if employees are displaced from the office? If not, it may be time to replace the existing IT infrastructure with more modern cloud-based legal software in order to ensure that essential business operations are not disrupted.

Create A Plan That Addresses The Top Threats To Your Firm’s Business

When creating a business resiliency plan, one of top tasks will be to identify your firm’s primary business functions. For many firms, those will include a number of different business processes that affect employees and clients, such as marketing and public relations, lead management and intake, client intake and communication, case management, human resources, payroll, and IT needs.

Once your firm’s primary business operations have been identified, the next step is to identify the top threats to each of those functions. Of import is that different types of business disruptions will necessarily have varying degrees of impact on each identified business process.

For example, natural disasters may result in damage to the firm’s offices, employees’ homes, or both. The types and locations of the damage will obviously affect your firm’s operations differently, thus triggering only certain aspects of your firm’s resiliency plan. Other types of possible disruptions, such as pandemics, power and utility outages, and cyberattacks will similarly have disparate effects on varying aspects of your firm’s operations.

Note that some of those threats are universal, such as a pandemic, cyberattack, or utility outages. Others will be more specific to the where your firm’s offices are. For example, many potential natural disasters will vary greatly depending on location. You will need to identify the natural disasters most likely to strike your offices and affect your firm’s operations, and how to respond to them.

Once  you’ve identified the top threats to each business function, it’s time to move on to preparing a recovery plan for each essential service under each disaster scenario. The end goal is to ensure that no matter what type of disruption occurs or how it affects the firm, there is a plan in place that will provide guidance in the midst of uncertainty.

Because every law firm is different — the resiliency plan will vary by firm. With that in mind, the top objective at the outset will be to prioritize the processes that are the fundamental to your firm’s day-to-day operations and the goal will be to keep those processes running smoothly no matter what happens.

Future-Proofing Your Firm Is Not An Option — It’s A Necessity

The bottom line: future-proofing your firm is not optional. Instead, it’s a key part of protecting your firm’s reputation and bottom line in both the short term and the long term. If your firm doesn’t yet have a business resiliency plan in place, better late than never. Take advantage of any downtime during the current pandemic to create a business continuity plan that your firm can rely on if there’s a COVID-19 surge in your area or if another disaster strikes down the road.

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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.

The coronavirus crisis has ravaged Biglaw firms, with salary cuts, furloughs, and layoffs galore. Some firms are delaying or reducing bonuses, and others are eliminating bonuses (and salary increases) entirely this year. Given the economic fallout of the pandemic, it seemed unlikely that any firm would be offering previously scheduled bonus payouts — especially firms that had already announced a veritable pu pu platter of austerity measures.

But that’s exactly what’s happening.

Sources tell us that earlier this month, Husch Blackwell — a firm that originally slashed equity partner draws by 15 percent and reduced salaries for all managing directors and c-level executives by 10 percent before later cutting compensation for all income partners by 10 percent and implementing a round of rightsizing measures for lawyers and staff (ranging from job terminations and furloughs to salary reductions, transitions to less-than-fulltime status, early retirements, and deferrals) — paid out a special associate bonus that was supposed to be deferred until January 2021 under the auspices of the firm’s COVID cuts.

In a brief memo about the firm’s associate client development bonus (i.e., associates’ cut of work they bring in), Dean Boeschen, Husch Blackwell’s chief growth officer, had this encouraging message for associates: “Thank you for all of your hard work and efforts over the last few months. Your initiative and follow through truly helps us stand above the competition.” As with almost all other firms that have partially rolled back their austerity measures, things must be going better than expected over at Husch Blackwell. That memo is available on the next page.

Congratulations to all associates at the firm who received their client development bonuses much earlier than expected.

Remember everyone, we depend on your tips to stay on top of important bonus updates, so when your firm announces any type of bonus payment for associates, 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.

And if you’d like to sign up for ATL’s Bonus Alerts (which is the alert list we also use for salary announcements), please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish. Thanks for all of your help!

Earlier: After Slashing Partner Compensation, Biglaw Firm Moves To Stage 2 Of COVID-19 Austerity Measures: Attorney Layoffs (And More)
Executive And Partner Salaries Are On The Chopping Block At This Am Law 200 Firm

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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.

Just to recap, the Florida Board of Bar Examiners watched Indiana and Nevada both fail to run their bar examinations on time thanks to irresolvable technical difficulties. Nonetheless, the FBBE told all bar examinees that the test was going to go forward with the exact same provider, ILG, that failed to run the prior two tests. Then ILG forced the cancellation of multiple proposed test runs the week before the exam and the FBBE — incredibly — kept telling nervous applicants to sit tight and trust that everything would shake out. After stringing applicants along through the whole weekend, Florida canceled the bar exam with a scant notice and no plan.

Now the same people who managed that process are asking applicants to just accept that everything is going to be fine because NOW they’re using ExamSoft.

You know, the people who claim they were victims of a “sophisticated” cyberattack. Or maybe a straightforward DDoS attack? Or maybe just couldn’t handle the simultaneous load of one mid-sized state bar? How can this possibly go wrong?!?!?

The new and improved Florida bar exam will be held on October 13, so all those people who crammed for months for the August test… just keep it up! Or, don’t. Because the studying you’ve been doing for the first test doesn’t really apply because the new test is going to be three essay questions and 100 multiple-choice questions and different subjects!

All multiple choice questions will be based on Florida law, and will test the following seven subjects: Florida Rules of Civil Procedure; Florida Rules of Criminal Procedure; Torts; Business Entities; Evidence; Wills; and Trusts. The three essay questions will test Federal Constitutional Law and the following six subjects (all based on Florida law): Torts; Real Property; Florida Constitutional Law; Ethics; Contracts; and UCC Article 3. Other subjects that are normally available for testing under the current Bar Admissions Rules will not be tested in October.

Emphasis added.

So that money on prep courses was certainly well spent.

Look, it’s admirable that bar examiners aren’t trying to force applicants into in-person exams during a pandemic (which, as it happens, was the FBBE’s plan as recently as MAY!), but this is getting ridiculous. These folks have been grinding away for months to make sure they have every scrap of information about doctrines that will inevitably have zero bearing on their practices ever again and now they’re being asked to accept a different date, fraught with different tech issues, covering different subjects.

Just stop.

These folks have been through enough. There are better ways to “protect the public.” This just needs to end.

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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.

For some time now, Teva Pharmaceutical Industries—like many other pharmas recently—has been having the occasional chat with the Justice Department about what the latter sees as some pretty wide-ranging price fixing. While this is fairly widespread in the industry, it is also illegal, and according to the Feds, Teva’s been doing a whole lot of it: On arthritis, blood clot, cholesterol, cystic fibrosis, hypertension, pain, seizure skin condition drugs. Oh yea, and brain cancer. That, too. All the tune of $350 million extra in the bank.

* New Jersey gyms are being allowed to reopen with restrictions for the first time since the COVID-19 pandemic began. Now people can once again gym, tan, laundry in the Garden State. [NBC News]

* A lawsuit has been filed against the Trump Administration over a policy that allegedly makes it more difficult to obtain green cards. [CNN]

* The Florida bar exam has officially been rescheduled for October 13th. [Tampa Bay Times]

* President Trump’s former lawyer Michael Cohen allegedly helped Jerry Falwell, Jr. block the release of racy photos. [CNN]

* The SEC alleges that a Florida man used investor funds to pay for his divorce lawyer. Maybe his divorce made him better able to serve clients? [Bloomberg Law]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.