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For the life of me, I will never understand the resistance to wearing face masks during a freaking pandemic. Does it just make too much sense for some people? The fact that masks continue to be politicized just blows my mind. But, well, that’s where we are in 2020.

In Philadelphia, a controversy is brewing over a state judge’s reported refusal to wear a mask — and his demand that others in his courtroom follow suit. As reported by the Philadelphia Inquirer, Philadelphia Common Pleas Court Judge James Murray Lynn is the subject of a complaint over his mask protocol. In a letter to Margaret Murphy, administrative judge for the Family Division, written on behalf of public defenders and prosecutors, Lynn’s behavior is detailed:

“It has come to the attention of our offices that Judge Lynn continues to refuse to wear a mask while operating in-person hearings,” wrote Alan J. Tauber, first assistant at the Defender Association of Philadelphia, in a letter dated Friday, to Margaret Murphy, administrative judge for the Family Division, where Lynn sits. “We believe this safety breach needs to be addressed expeditiously.”

“Not only was he not wearing a mask, but he was actively ordering counsel to remove their masks while litigating,” Tauber wrote on behalf of both public defenders and prosecutors in the District Attorney’s Office.

And as also noted in the letter, this is not in compliance with stated rules:

In his letter to Murphy, Tauber noted that Lynn’s avoidance of masks runs “contrary” to a July 1 order from the state Department of Health that requires face coverings “in any indoor location where members of the public are generally permitted,” and is out of step with the First Judicial District’s own safety requirements. A sign indicating that masks are required is posted at the door leading into Lynn’s courtroom, Tauber wrote.

As is completely understandable, witnesses scheduled to appear in Lynn’s courtroom are uncomfortable appearing in a closed room where masks are not being worn:

On Aug. 5, for example, Lynn held a preliminary hearing in a domestic violence case. Assistant District Attorney Liz Hines said she was ready to proceed with witnesses and asked Lynn if he planned to put on a mask. When Lynn said no, Hines left the courtroom to talk to the witnesses, who said they “did not feel comfortable coming into the courtroom to testify if the judge was not going to be wearing a mask,” according to Tauber’s letter.

Lawyers agreed to waive the preliminary hearing so witnesses did not have to testify before Lynn that day.

It remains unclear what would have happened if it were not a preliminary hearing and the witnesses’ testimony had been required.

If you thought cooler — or at least more science-minded — heads would prevail, well, I’m going to have to disappoint you. The spokesperson for Murphy has already made a statement justifying Lynn’s anti-mask stance.

In response to questions from The Inquirer, Murphy’s spokesperson, Martin O’Rourke, said Lynn’s “presiding chair in his courtroom is positioned three feet behind a recently installed multisided plexiglass separation.”

O’Rourke added that lawyers and clients sit at least 15 feet away from Lynn and that Murphy has been in talks with lawyers with the defender’s and district attorney’s offices to resolve their concerns. O’Rourke said that Lynn asked one lawyer to “pull down his mask while he was talking” because he could not hear him.

And, O’Rourke said, the state Health Department order provides exceptions to wearing masks and permits judges to use their discretion during proceedings “where someone is required to speak (e.g., attorneys, witnesses, the judge) and to be heard intelligibly.”

Let’s all remember, that while plexiglass barriers are useful, and distance is great, the best tool we as a society have against the spread of the novel coronavirus is the consistent use of masks. Period. That is especially true in indoor spaces for extended periods of time — like during a court hearing.

Come on people, we have to do better than this.

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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).

As schools nationwide discuss how they may safely open for in-person learning, there is no doubt that remote learning is with us for the foreseeable future, and with it, concerns about online harassment and free speech rights for student protesters.

How can attorneys working with educational institutions help clients create a plan to address threats of outside cyberbullying, and to update student disciplinary guidelines regarding student demonstration in the classroom? In a recent CLE program, Addressing Online Harassment in an Educational Setting, Samatha Harris, Senior Fellow at the Foundation for Individual Rights in Education, recommends modeling preventive measures and guidelines around existing Title VI and Title IX guidelines, while ensuring that the updated rules don’t bump up against a student’s First Amendment speech protection.

What can be done to prevent student disturbance in the virtual classroom?

In response to complaints of “Zoombombing,” Online teleconferencing platform Zoom expanded its meeting privacy options to give hosts greater control over participants after uninvited outside actors, or “internet trolls,” began entering Zoom meetings to harass participants. Emboldened by online anonymity, these “trolls” would use hateful speech and post offensive imagery in online classrooms, city hall meetings, and even Synagogue services.

To combat the trend, Zoom changed its privacy settings so that meetings require a password by default, and enabled virtual waiting rooms for meeting hosts to have greater control over who can join. Only participants with the personal meeting ID may enter the ‘lobby,’ after which meeting hosts have the option to conduct a secondary screening before granting entry. 

How can public schools prepare for student demonstrations?

Chief Justice Abraham Fortas, in the landmark Tinker case, famously declared that students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The virtual classroom is no different, and, so long as the student does not disrupt the learning process, much like Tinker’s infamous black protest armbands were not found to be a class disturbance, a public school may not restrict a student’s First Amendment right to free speech. 

Educational institutions preparing guidelines for students to peacefully protest online should institute viewpoint-neutral guidelines focused solely on the manner of expression, and not the viewpoint itself, to avoid potential First Amendment violations. Even If a student’s conduct does cause a severe disruption, too little case law exists to determine allowable discipline, and attorneys advising educational institutions should proceed with caution.

For a more in-depth analysis, including recent court opinions and how they may affect a school’s legal obligations, check out the full program here. 

This article was prepared with help from Max J. Cheslow, a Seton Hall Law student. 

Related Content:

1. COVID-19 Pandemic: Federal Special Education Update
2. Zero-tolerance or Zero-enforcement? A Guide to Taking on Bullies in School or Online Part I
3. Zero-tolerance or Zero-enforcement? A Guide to Taking on Bullies in School or Online Part II

There’s been a lot of controversy about the upcoming August 14 implementation of changes to Title IX — the federal regulation that sets the standards for what is legally required in educational institutions when a student (or employee) is accused of  a sexual crime on campus.

The rule changes, penned by Donald Trump appointee Betsy DeVos, are being opposed in four lawsuits joined by attorneys general from 18 states. The suits move for injunctions on the basis that the changes are impossible to implement quickly (especially with COVID-19) and unfair to accusers, who can now be cross-examined.

But from the perspective of the accused and civil rights organizations like FIRE, the changes were long needed and will help even the playing field between accuser and accused so that an allegation alone, without rebuttal or impartial investigation, won’t get a student kicked out of school.

Major revisions include:

1) The accused student will be presumed innocent, or “not responsible” during the grievance procedure. The school, not the accused student, will bear the burden of proof.

2) Both parties will have a right to submit and review evidence.

3) Both parties can be represented by an “adviser” of their choice (this can be an attorney but need not be).

4) The accused has a right, through their adviser, to ask questions of the complainant in real time, during a live hearing. (It used to be an attorney, if permitted to attend, could only suggest questions during the hearing. There was no guarantee they would be asked.)

5) The school must use trained Title-IX personnel, free from bias to either party, to evaluate all relevant evidence. The person who conducts the investigation can no longer be the adjudicator of the claim.

6) The standard of proof must be at least “preponderance of the evidence,” but can be higher such as “clear and convincing” evidence.

7) All parties (including the accused) are protected from questions about their prior sexual history, unless relevant to specific facts of the case.

9) At the conclusion of the hearing, a written analysis must justify the decision.

6) The accused student will have a right to appeal.

Coming from a criminal defense perspective, none of these changes seem radical. They guarantee some measure of due process to the accused and apply a consistent standard across the nation.

It does, however, cost money. Rejiggering the existing system, imposing new rules, training staff, etc., will require funding. “Not such an easy thing to come by these days,” said New York attorney Scott Iseman, who’s handled at least 20 of these cases. “Schools are getting more competent at it, in general, but some are more robust than others.”

Getting kicked out of school due to an allegation of sexual harassment is as traumatic as being arrested and tried for a crime. Public shaming, loss of tuition, and possible criminal investigation and punishment, make the stakes extremely high — particularly where many of the scenarios come down to a he said, she said contest.

A psychologist told me about a young man kicked out of a small private college for alleged sexual assault. He was a virgin, had been drinking at a party, and later had sex in his dorm room with a young woman. He thought it was consensual. The next day he found a sticker on his door reading: “That was not consensual, you know.”  He was expelled and went into a deep depression.

Nationally, universities have adopted an “affirmative consent” standard. It requires communication between the parties, whether verbal or nonverbal, showing that each actively consents to sexual conduct. But the devil’s often in the details, and when one or both parties have been drinking or using drugs, the line between consent and incapacity to consent becomes difficult to discern.

The new standards set up specific procedures safeguarding the due process rights of the accused without diminishing the rights of the accuser.

Because they come from an administration whose leader has been accused of sexual harassment himself, the rule changes have drawn fire from many quarters. But from the perspective of a criminal defense attorney, it seems like the modifications enhance fairness and should have happened a long time ago.

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Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

Superstar Britney Spears is no stranger to legal headlines, having been the subject of a California conservatorship since 2008. Recently Spears’ case returned to court, albeit in a virtual Zoom session, in order to monitor the status of the legal arrangement.

A conservatorship, sometimes referred to as a guardianship, is a remedy used when an individual is unable to provide for her personal and/or financial needs. A conservator of the person ensures that an individual has proper health care, food, clothes, and shelter. A property conservator is appointed when a court determines that an individual cannot manage her financial affairs.

Spears’ father, Jamie Spears, and Andrew M. Wallet, Esq., were initially appointed co-conservators for her in 2008. Wallet has since resigned. Jamie Spears temporarily resigned in 2019 for health reasons. Following that, care manager, Jodi Montgomery, became conservator. The matter is set for an August 22, 2020, court appearance in order to determine the future of the conservatorship and whether it should continue. The singer’s mother, Lynne Spears, wishes to become more involved in her daughter’s care. Judge Brenda Penny has previously ordered an expert exam into Spears’ capacity with regard to the continuance of the conservatorship. Under the law, Spears has a right to have legal representation, a conservator change or to petition to end the conservatorship. At the moment no formal application has been made to end the conservatorship.

In recent months, Spears has gathered support from her fan base, which has organized under the hashtag: #FreeBritney. Many of the supporters feel that Britney should not have a conservator, that she is capable of managing her own affairs and making her own decisions, and that the conservatorship is costing her too much money. The fans appear on social media and often outside the courthouses during proceedings involving Spears. Recently, a petition has been widely circulated to end the conservatorship.

Spears’ 2020 net worth is estimated by many at approximately $50 million, although at times it is estimated to have been around $250 million. In recent days, court files have revealed costs related to Spears’ conservatorship. The alleged total paid to Spears’ advisors and attorneys was $1,202,504.30 for the year 2019. Jamie Spears was paid $128,000.00 in commissions as conservator. Court records also revealed that Britney is authorized monies to spend at stores, for her personal needs. Target, Anthropologie, and Amazon are a few of her repeated vendors. Significant funds were spent on residential costs in addition to travel expenses totaling  $91,242.01. Instagram followers will confirm that Spears has ventured to and enjoyed vacations in Turks and Caicos as well as Florida.

Conservators and guardians have to report to courts as to the care of their wards and management of their monies. A conservator will account for every expenditure made on behalf of the individual down to Starbucks coffee and Uber rides. The court will review the accounting and inquire as to monies paid out and any assets marshaled. Commissions and legal fees paid are determined by the court, either pursuant to statute and/or related to the size of the conservatorship estate and the complexities of its management.

Last week, a quarterly meeting was held to review Spears’ conservatorship. It was scheduled for Zoom and was crashed by several people who were not parties to the action. The judge “closed” the courtroom in an effort to preserve integrity and privacy of the process. Many conservatorship hearings and decisions are sealed in order protect the privacy of the individual. In a few weeks, this matter will again be at the forefront, when a court will determine the future of Spears, at least for now.

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Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.

Almost exactly two years ago, Donald Trump nominated Allison Rushing to the Fourth Circuit even though she’d only graduated law school in 2007 and spent about a third of her career clerking. Many saw the nomination as a low water mark for the administration’s cynical approach to the judiciary and willingness to install ideologues with the longest possible career runways ahead of them. I wasn’t so sure that we’d seen the most egregious nomination. At the time I quipped:

Before this administration is over, a 3L serving as FedSoc Treasurer at Ole Miss could get a district court nod and not a single goddamned one of you will be shocked.

And as it turns out I wasn’t far off.

Kathryn Mizelle was just nominated for a life-tenured position on the Middle District of Florida. It’s not all that surprising to learn that a judicial nominee has featured in the Above the Law pages before as a Supreme Court clerk. It is, on the other hand, surprising to learn that she was a clerk last f**ing year.

What record is the Judiciary Committee supposed to question her on? Her Torts exam?

Mizelle has been out of law school for eight years and she’s spent four of those years clerking — most recently for Justice Thomas, serving prior stints with appellate judges William Pryor and Gregory Katsas and her probably-soon-to-be colleague James Moody of the Middle District of Florida. And when the comically inexperienced Judge Rushing graduated law school, Mizelle probably hadn’t even taken the LSAT yet! Indeed, Professor Carl Tobias of Richmond Law notes that, if confirmed Mizelle could be “the youngest person appointed to the federal bench since Reagan appointed Alex Kozinski to the Court of Claims one month after he turned 32 and to the Ninth Circuit at age 35.” And that turned out well!

Honestly, imagine looking at a resume in 5 years and getting excited to see a candidate with a federal clerkship and then realizing it’s with a judge having next to no practical experience. Anyone telling you all federal clerkships are worth it is lying — maybe even to themselves — because employers are more savvy than “derp, clerkship!” and we’re going to see a lot more careful scrutinizing of those resume lines as these classes of Trump clerks pile up.

“The Not So Magnificent Mrs. Mizelle” is an unfortunate moniker to carry into confirmation hearings but this is the burden the administration (or more accurately the FedSoc puppet masters behind it) has dumped on this young lawyer. She might well have had a great legal career ahead of her that would chalk up to a sterling application in a dozen years or so, but we’ll never know because she’s getting called up from junior varsity now. It’s not her fault that she has to say yes to this farce — there are no guarantees this will come around again.

And that’s assuming she even gets to the committee. Professor Tobias notes that the calendar doesn’t necessarily work in her favor:

It is very late in the term of a President who may lose in November, Ms. Mizelle would have to leapfrog many nominees ahead of her in the queue and the Senate has moved very slowly all year on confirmations, the Senate is poised to recess today until after Labor Day and will only return for several week until it recesses to campaign.

So this may not even end with her getting her day in front of the Senate? Given the schedule, this almost feels like a stunt. And unfortunately, either way, she gets to be the punchline for the cruel joke Trump and McConnell are playing on the judicial branch.

Earlier: Trump’s Latest Circuit Nominee Graduated Law School In 2007
Supreme Court Clerk Hiring Watch: Justice Kavanaugh’s History-Making Class Of Clerks
Donald Trump’s Devaluation Of The Federal Clerkship

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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 been more than six months now, and the United States is still in the midst of a global pandemic with no end in sight. Different states are in different stages, and surges are difficult, if not impossible, to predict. In other words, predictability is a thing of the past, and the lack thereof is our new normal.

This newfound reality that we all find ourselves in makes it challenging to run a successful business, as many lawyers are unfortunately discovering. The uncertainty of not knowing when a full-time return to a bricks-and-mortar office will be possible is unsettling, to say the least, and makes it difficult to manage a law firm as if it were business as usual. Fortunately, viable remote working technology alternatives are available, and most law firms are taking advantage of them.

The Rise Of Remote Working Powered By Technology

Because of the pandemic, lawyers and their employees have transitioned to remote working. As a result, law firms are increasingly relying on the cloud-based technology that makes remote work possible, since this technology is the only way to ensure that law firms continue to be both functional and profitable.

But don’t take my word for it. Instead, let’s take a look at what law firm leaders have to say about it.

According to the results of a recent survey of legal professionals, “The 2020 Wolters Kluwer Future Ready Lawyer,” technology is the trend that 76% of respondents believe will be the most likely to impact their legal organization over the next three years. Of particular interest is that the perceived impact of technology rose significantly due to the effects of the pandemic, as shown by the survey results. Specifically, in the 2019 survey, technology impact ranked third, but it rose to the top in 2020.

Other notable trends of import to respondents included an emphasis on improved efficiency and productivity (74%) and the challenge of coping with the increased volume and complexity of information (72%).

The respondents also indicated that they expected technology to affect their organizations in a number of ways, with 82% predicting that their increased use of technology will change how they deliver service. Accordingly, it’s not surprising to learn that 56% of overall respondents expected to increase their spending on legal technology software over the next three years. That percentage was even higher for the law firm segment of respondents, with 60% of law firms indicating that they planned to increase their technology investment over the next three years.  As explained in the survey findings, that expected growth “is fueled by increasing interest from law firms and corporate legal departments in leveraging these platforms to streamline and automate processes, more effectively manage their organizations, increase productivity and better serve clients and customers.”

Cloud-based Legal Software Use On The Rise

The technology that law firms are relying on the most to facilitate remote work and the continued operation of their firms is cloud computing. While cloud computing software use has increased in recent years, the pandemic has accelerated the rate of adoption.

As a recent survey conducted by MyCase in June shows (note that I am the legal technology evangelist for MyCase), the use of cloud computing legal software by lawyers has steadily increased since the start of the pandemic. The survey results showed that 90% of the law firms surveyed shared that cloud-based technology enabled their firm to work remotely at this time, an increase from 79% in April.

Also of import is that for many law firms, cloud-based software is the key to their continued profitability despite the pandemic. According to the survey results, 70% of the lawyers surveyed reported that cloud technology is paramount to their firm’s financial stability.

Notably, the law firm leaders surveyed for the Walters Kluwer surveyed likewise agreed that technology adoption was the key to their success. Specifically, 62% of the law firms identified as technology leaders (those firms leading in technology adoption) reported that their firm’s profitability increased over the prior year, compared to 39% of transitioning firms (those in the midst of transitioning to new technology) and just 17% of trailing firms  (Those firms trailing in their technology adoption).

Of course, for many firms, the technology adoption driven by the pandemic was not one of choice, but rather, of necessity. This begs the question: Do firms perceive their increased, albeit arguably involuntary, technology adoption as a benefit or a drawback? According to the MyCase survey results, the majority of lawyers indicated that the change was a positive one, with 52% strongly agreeing that technology adoption in law firms is a good thing, and 54% strongly agreeing that the same was true of courts.

What Does The Future Hold?

And last, but not least, what about the future? Do law firms expect additional uncertainty through 2020, or are they hopeful that things will return to normal sometime soon? Overwhelmingly, the lawyers responding to the MyCase survey believed that the end of the pandemic and its repercussions are not near, with 87% of respondents indicating that they believed that additional pandemic-related disruptions will occur throughout the remainder of the year.

What does this mean for technology adoption? Although it’s impossible to predict the future, I would argue that technology adoption will no doubt continue to rise as a result of the unpredictability caused by COVID-19.

And as far as I’m concerned, that’s a good thing. The increased use of technology by lawyers is a long time coming and is a positive trend. Investments in legal technology are investments in the future, and will ultimately reduce inefficiencies and save law firms time and money. So when it comes to riding out this pandemic with the end goal being to emerge on stable footing, there’s no better time to invest in technology than the present.

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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.

* A Cincinnati lawyer has pleaded guilty to buying a $3,000 tiger-skin rug in violation of the Endangered Species Act. Maybe he was just a huge fan of Joe Exotic? [Enquirer]

* A South Florida lawyer says he has spent around $700,000 to recover $100,000 over the principle of it all. [Daily Business Review]

* Parents are claiming in a new lawsuit that remote learning because of COVID-19 denies some children a basic education. [News Tribune]

* The Florida lawyer who wore a grim reaper outfit to warn about the dangers of COVID-19 is now using a mobile billboard to protest Governor Ron DeSantis’s response to the pandemic. [Florida Phoenix]

* A California lawyer who called a female judge’s opinion “succubustic” is suing over potential ethics consequences for the comment. If it weren’t for South Park, I would have no idea what that meant… [ABA Journal]

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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 the National Association Of Law Placement (NALP), how many job seekers did the law school Class of 2013 produce?

Hint: It was an historically large class due to the Great Recession, unfortunately, the number of jobs secured by the Class of 2013 (37,730 jobs) was smaller than the number of graduates.

See the answer on the next page.