Category: News Feeds

The Florida bar exam has been delayed three times. So far.

The first delay came after the state realized it would be impossible to hold the in-person July exam they were planning to show the world that COVID was Dr. Fauci’s made-up threat because, as it turned out, COVID was not Dr. Fauci’s made-up threat. At that point, the state with the nation’s second-highest number of infections — though Texas should pass them before the week is out — scheduled an online exam for today before remembering that there’s an election in Florida today and people need to go to the polls because mail-in balloting is for the communists. The second delay pushed the exam to Wednesday, where it was slated clear up until Sunday night when online exam technical challenges forced the state to push it off to an as yet unspecified October date. That’s a lot for applicants to deal with.

And a number of examinees are taking their frustration to the streets.

Tomorrow, bar exam applicants will gather at the state supreme court to protest the continued delays and demand a resolution to the ordeal.

“They need to give us some sort of bar exam or give us (diploma) privileges and get on with it,” [Florida International University law graduate Michael Ellis] said. “It’s gone on long enough — I myself have been studying since January.”

Studying since January is pretty extreme but maybe this is why FIU keeps dominating the Florida bar exam. But even a more traditional “since May” study period becomes unreasonable when authorities are holding applicants hostage to an unknown test date that could be three full months after the test was originally scheduled. Studying for the bar exam isn’t like studying for a regular test — it forces examinees to memorize everything in niche practice areas they’ll never touch again and then spit it out before purging it all and going about the real job of being an attorney which involves not a goddamned thing from the exam. Telling applicants to retain that information for an unexpected extra week is nerve-racking… an additional three months would be torturous.

The uncertainty surrounding the exam means recent graduates seeking employment may have to tell firms they can’t accept offers in the often cutthroat industry, Ellis explained.

And “many qualified students I know have already had their job offers (rescinded),” he said. “And it’s 100% because of the delay, and the way the delay was handled.”

Which is why the protest is on and why, ultimately, diploma privilege in some form is the only answer to the challenges of 2020. Even if the diploma privilege option was cabined by setting an arbitrary grade point average — and simply waiving in practitioners with licenses in other states — dispensing with a large chunk of examinees would make any future test more manageable.

In Pulp Fiction, Marsellus explains, “The night of the fight, you may feel a slight sting. That’s pride fucking with you. Fuck pride. Pride only hurts, it never helps.” And while Marsellus is certainly a bad dude, the failure to follow his advice really put a crimp in Bruce Willis’s day, so there was something to this wisdom. To the Florida state supreme court — and licensing authorities everywhere — emergency diploma privilege might give you a slight sting, but that’s pride. Your bar passage wasn’t special… you aren’t better or worse at your profession because you endured it… and you aren’t making anyone better off by living off that accomplishment.

Pull the plug on this thing. This has gone on long enough.

Eager to test, law students plan protest over latest postponement of Florida bar exam [Tallahassee Democrat]

Earlier: Florida Promises Most Packed July Bar Exam Ever To Own The LibsFlorida Calls Off Wednesday Bar Exam… Just Like Everyone Knew They Would

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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.

A Pennsylvania judge has apologized for shocking comments he made at a protection-from-abuse hearing that the Pennsylvania Superior Court called “belittling.” Judge Alan Rubenstein now says his comments were “more than inappropriate” and “absolutely wrong,” but says he was “outraged and angry” at the abuse the victim had suffered for 17 years.

As reported by the Bucks County Courier Times, in the hearing where Judge Rubenstein granted the protective order, he said to the woman:

“Little blond honey, you’re too dumb to leave. She tells me she was putting money in her 401(k) so she can leave. That’s a bunch of crap. Keep on doing that; that 401(k) money will pay for your funeral. How can you stay with this knucklehead? You have no self-respect.”

And he also had choice words for the alleged abuser:

“So he’s a real tough guy when it comes to beating on women,” Rubenstein said. “We’ve seen guys like that. They have other inadequacies. I’m not going to address them because I’m not an anatomist, but it seems to follow.”

Though the parties didn’t raise the issue on appeal, the superior court called the comments “shocking, sexist, offensive and egregiously inappropriate,” and said they “evince a fundamental misunderstanding of the dynamics of intimate partner violence.” And as the ABA Journal reports, the court also found the comments inaccurate:

The court also said the remarks were “largely inaccurate” because the woman had been separated from the man since 2017. During the separation, the woman obtained sole legal custody of their children after an incident that happened while the daughter was at the man’s house. The daughter testified that her father had assaulted his girlfriend.

After the separation, the abuser “inundated her with over 560 text messages in one week, including links to songs with violent lyrics,” according to the opinion. He also purchased a tracking device that was attached to the woman’s vehicle. After the custody hearing, he posted a threatening message on Facebook.

According to reports, the woman at the center of the issue merely thought Rubenstein’s comments were a “generational thing.” And her lawyer, Jan Grossman, said, “Everybody is up in arms about what the judge said, but 95% of his ruling was a fantastic protection for women and victims.” Which very much seems to miss the point.

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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).

Democratic vice presidential candidate Kamala Harris is hitting the campaign trail hard for the November election, and she’s taking her husband with her.

Doug Emhoff would make history as America’s first ever second gentleman if the Democrats win this fall. While he may be a successful DLA Piper partner — on average, partners at the firm raked in $1.951 million in profits in 2019 — he’s leaving all of that behind, temporarily, so the nature of his work won’t serve as a liability. Here are some additional details from the American Lawyer:

A DLA Piper spokesman on Monday confirmed that Emhoff, a litigator in the firm’s Los Angeles office, is in the process of transitioning his clients to different attorneys in the firm.

Ever since Joe Biden named Harris his running mate, questions have swirled about Emhoff’s role in the campaign, especially since the Biden campaign has sought to connect Harris with voters in the last week. Emhoff’s law firm profile, which currently says he represents “large domestic and international corporations” in complex disputes, likely won’t resonate with some voters.

Emhoff is doing the best he can to support his wife, as evidenced by his Twitter feed:

Best of luck to this power couple as they take on the nation!

Emhoff, Kamala Harris’ Spouse, Taking Leave From DLA [American Lawyer]

Earlier: This Biglaw Partner May Soon Become The First Ever ‘Second Gentleman’

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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.

With in-person exams dangerous exercises that have avoided mass outbreaks mostly through luck and online exams imploding, you might think that every bar exam calamity was already covered. However, you’d be wrong.

In another wrinkle of the state reliance upon the NCBE monopoly for all licensing needs, many applicants are being told that they can’t sit for any other bar exam during 2020 because there’s too much risk that they’ll see NCBE questions repeated.

For example, California writes to its applicants:

Candidates shall affirm that they do not, and will not, plan to sit for any other jurisdiction’s bar exam administration in July, September, or October 2020 during which NCBE tests are used. Jurisdictions should prohibit candidates from participating in the remotely administered test if they will sit for any of these in-person administrations of the bar exam, as such participation may provide an opportunity for nonbona fide candidates to gain access to NCBE’s copyright-protected test material.

Did we say too much risk of repeated questions? Because we meant too much risk that they may see “NCBE’s copyright-protected test material.” Yes, the restriction seems less concerned with exam integrity and more with the risk that… what? A test prep company would send in spies to learn all of NCBE’s secrets before they publicly release the questions? None of this makes a lot of sense and it seems a bold leap to assume anyone looking to be admitted in multiple jurisdictions is a “nonbona fide” examinee.

Regardless of its logic, this standard presents a severe barrier to applicants wishing to practice in neighboring jurisdictions without in-person UBE portability or independently negotiated reciprocity.

Most people don’t need multi-state jurisdiction at the outset of their careers so this isn’t going to have the same detrimental impact as a crashed online platform, but it’s a real problem for folks that do. Assuming California isn’t alone in this position — and I suspect this is going to be the universal position — this could put a crimp in a lot of people’s careers.

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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 someone seemingly so steeped in the Principled approach—minor videotaped transgressions aside—and its emphasis on process and doing things the right way, Bridgewater Associates has to admit it is very disappointed in former co-CEO Eileen Murray. Indeed, it has to wonder whether she ever really understood the Tao of Ray; whether, in spite of her having survived and apparently thrived for a decade in Westport, she ever really properly acclimated in those first 18 months. While she had perhaps in that time earned the right to have an opinion on how much she should have been paid on her way out the door, she surely should have known that it was very unPrincipled indeed to share that opinion her new employer, which just happens to be an employer that regulates Bridgewater, about their little dispute over determining the true value of a penis or lack thereof in a severance package. And surely she must, or should, have known that the proper (and, by the way, contractual) way to handle it was not in the courts.

* A special prosecutor appointed in the Jussie Smollett case found that the prosecutor’s office abused its discretion in overseeing the matter. [Wall Street Journal]
* A Texas lawyer is being sued for allegedly leading clients to a failed real estate investment with which the attorney had an undisclosed interest. [Texas Lawyer]

* The Boston Bar Association is urging Attorney General Barr not to pursue the death penalty for the Boston Marathon bomber. [Boston Globe]

* Apparently it’s not libelous to tell a lawyer that he “needs to go back to law school.” Maybe this is because lawyers learn very little about how to be practicing attorneys in law school… [Volokh Conspiracy]

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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.

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

According to data collected by Law.com, what percentage of Multi-District Litigation plaintiffs’ leadership teams from 2016 to 2019 identified as nonwhite?

Hint: About 4 percent of attorneys in MDL leadership positions had undetermined ethnicity, but even with that unknown, the numbers reveal a shocking number of white attorneys in these roles.

See the answer on the next page.

During the initial months of the Covid-19 pandemic, insurers saw profits rise, even double, as patients cancelled surgeries and postponed care. This has left insurers to explain their various pandemic response efforts in an election year where a public option could be on the table.

UnitedHealthcare saw its net profits jump from $3.4 billion in 2019 to $6.7 billion for the second quarter of 2020, with Anthem and Humana also seeing their bottom lines double. Aetna, which was acquired by CVS Health in 2018, also contributed to its parent company’s rising profits, with the segment’s operating income increasing from $1.06 billion last year to $3.07 billion in 2020.

As they set premiums for next year, insurers will have to walk a tight line between not setting rates too high, triggering premium rebates, while not underestimating future costs related to care that might have been deferred today.

“They’re going to be walking this fine line where they don’t want to make too much money or price too high. On the other hand, they’re still going to want to be competitive,” Fitch Ratings Senior Director Brad Ellis said in a recent panel discussion. 

The Affordable Care Act requires health insurers to spend at least 80% of their premium income of healthcare claims and quality improvement, limiting the amount that can go to administration and profit. When healthcare spending falls below that threshold, they’re expected to pay members back in premium rebates, calculated over a three-year period.

Based on what they spent in 2017, 2018 and 2019, insurers are expected to repay $2.66 billion to 7.9 million members in 2020, according to an analysis by the Kaiser Family Foundation (KFF).

“Insurers have already paid back record rebates in the past two years. It’s reasonable to expect that would continue,” said Daniel McDermott, a research associate with KFF.

If healthcare spending so far this year is any indication, more rebates are likely in the future. Insurers saw utilization rates drop between 30% and 40%, as elective procedures were cancelled and patients opted to stay at home. They also saw medical loss ratios — the amount that they spend on claims — fall to new lows, with UnitedHealthcare reporting a ratio of 70.2% and Aetna seeing its ratio fall to to 70.3% in the second quarter.

Some patients might also see funds this year in the form of premium credits. Earlier this month, the Centers for Medicare and Medicaid Services said it would allow insurers in the individual and small group markets to temporarily offer premium credits to help people who might struggle to pay premiums due to the current health crisis.

Setting premiums for next year

Given the sudden drop-off in care, one might expect premiums to decrease next year. But that’s not necessarily the case.

Based on individual market plan data from 10 states, so far, a modest increase is expected for next year, McDermott said. The median increase was 2.4%, but rates ranged from an 11% decrease by the Kaiser Foundation Health Plan in Maryland to a 31.8% increase by New Mexico Health Connections, which recently announced that it would cease operations at the end of 2020.

“Most insurers have held off from making assumptions about Covid-19 in their preliminary filings,” he said. “A lot of insurers are still in wait-and-see mode.”

Payers are still trying to factor in the costs of a vaccine, a potential second wave of Covid-19 in the fall, lasting effects of the disease itself, and costs related to deferred care.

Since the start of the summer, patients have started coming back quickly, though insurers still haven’t seen the “pent up demand” for care that they had expected.

“Although it’s started to tick up a bit, health spending is still 10% lower than it was last year,” McDermott said.

It’s difficult to forecast how that will change in the next year.

Industry lobbying group America’s Health Insurance Plans estimates treatment costs for Covid-19 could range from $30 billion to $547 billion over the next two years.

“The second half of the year could see a lot more care, and higher costs, than the first half of 2020,” AHIP wrote in a blog post. “However, if these costs never materialize and remain below certain levels, American consumers, businesses, and taxpayers are protected by provisions in federal and state laws that require health insurance providers to deliver premium rebates and put money back into their pockets.”

Membership changes

For insurers, the biggest threat is long-term changes to their membership if more patients lose their job-based insurance. So far, that effect has been less than expected at the beginning of the pandemic.

UnitedHealthcare, for example, saw its commercial enrollment decrease by 2%.

“The impact on commercial enrollment hasn’t been as great as we would have otherwise thought based on the unemployment data, just because of the stimulus as well as the furloughs,” CEO David Wichmann said in an earnings call.

Anthem also reported a less-than-expected decrease in commercial enrollment of 290,000 members, while its Medicaid enrollment increased by 15%. That said, its executives said they expect a decrease in commercial membership when federal assistance ends.

“I want to be clear, we do expect further declines, assuming the economy continues to operate at less than full capacity,” CEO Gail Boudreaux told investors.

Centene, which is a big provider of Medicaid and ACA marketplace plans, actually had raised its revenue guidance for 2020 by $6 billion, based on unemployment trends. But it recently adjusted its expectations down by $500 million, noting that membership at lower rates than it had initially expected.

That leaves one big variable: the upcoming election. That could spell out the future for the Affordable Care Act, the recent outcropping of Medicare Advantage plans, or potentially even a public option.

“The election is a huge issue for health insurers. Who gets into the White House is very important, whether it be from the standpoint of Medicare for All, or whether it be the extent to which the Medicare Advantage program itself is supported as it has been under the Trump administration,” Ellis said. “Assuming there’s no change in terms of a public option or the overall healthcare system, we expect insurers to return to baseline run rate margins.”

Photo credit: TAW4, Getty Images

As the days and weeks since the tragic deaths of George Floyd and Breonna Taylor march forward, it’s natural to start to wonder what, if anything, has changed. Biglaw made a big promises in the wake of protests supporting Black Lives Matter, but will that actually make a difference?

Of course, what the most powerful law firms should do to support racial justice is a question with a lot of different answers. Giving money is a big, and somewhat obvious, answer, as is doing some really vital pro bono work. But more is needed. Like rethinking what programs firms support, and even rethinking the traditional holiday calendar. Lots of firms got in on declaring Juneteenth a holiday, and now there’s another day earmarked for equal justice.

Fenwick recently announced a Voting Rights Initiative which includes declaring Election Day a paid public service holiday, designed to allow employees the time to vote and volunteer. In a statement about the new program, firm chair Richard Dickson said the move was linked to the firm’s commitment to equal justice:

“Our voting initiative ties directly to Fenwick’s Action for Change and our promise to work toward equal justice through civic engagement,” said Fenwick Chair Richard Dickson. “Voting is the most powerful lever in a democracy, and the most effective way to bring about change at the local, county, state and national levels. I hope that other law firms and more companies will join in making similar investments to promote the civic engagement needed for a properly functioning democracy.”

As with most Biglaw trends, we’ll be tracking exactly which firms are giving time off for employees to do their civic duty. If your firm is giving time off for Election Day or otherwise supporting voting rights, let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

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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).