Category: News Feeds

The ongoing COVID-19 pandemic has had a massive impact on the legal industry. As detailed at length on this website and others, many law firms and in-house departments have been forced to furlough or terminate employees due to economic issues caused by the pandemic. The amount of job losses within the legal profession may even rival the losses experienced during the Great Recession. Since the job market is competitive right now, and the ongoing pandemic does not appear like it will subside anytime soon, many jobless lawyers may be contemplating starting their own law firms as a solution for unemployment. Indeed, numerous people have been asking me recently about hanging out a shingle, since I myself took this step about a year and a half ago. However, starting a law firm is not an easy solution for unemployment, and many individuals should not hang out a shingle just because there are fewer job openings in the present environment.

One of the main reasons why people should not rush into starting a law firm if they find themselves out of work is because opening your own practice takes substantial planning and saving. It takes a long time to make money after starting a law firm, and people need to save and think about how they will pay for all of the expenses associated with starting their own practice. I personally planned on starting a law firm nearly a year before I gave my notice to my employer so that I could think about all of the practicalities associated with launching my own shop. I also took that time to save up money that I could rely upon when starting a law firm. It takes a substantial nest egg to secure the malpractice insurance, office space, technology, and other resources needed to launch a successful law firm, and it may be difficult to save this sum if you start a law firm shortly after losing your job.

Another reason why it rarely makes sense to consider starting a law firm as a solution to unemployment is because it takes time to build a law practice. Indeed, it took me months to build my book of business, begin effective advertising, and see cash flow increase from invoicing. Luckily, I was fully committed to my practice, and I wanted to start a law firm not because I did not have other options but because I wanted the lifestyle of being my own boss.

If you start a law firm because there are few other employment opportunities, you might not have the commitment and drive needed to weather the storm in order to build a successful practice. Indeed, I have friends who started their own law firms, but their practices failed because they were not totally committed to running their own shop. Other friends of mine failed to launch a successful firm because they just did not give their practices enough time to grow and develop. It is extremely difficult to start a law firm, and if you do it out of necessity, you might have a lower chance at being successful.

Another reason why starting a law firm is not a good solution for unemployment is because launching a firm could actually hurt your future prospects of landing a job at an established firm or in-house department. Many employers like to see applicants who have experience working at respected shops with which they are familiar. However, if a manager sees that a candidate opened his or her own shop, it might reflect poorly on the candidate and seem like they had no other option but to run their own firm. In addition, working for certain types of clients could make it difficult for you to abandon your practice for other gigs. For instance, if you make an appearance in court on behalf of a client, it might be difficult to leave the client hanging, unless you have another lawyer lined up who could continue the case or you can bring the case to a new firm. As such, operating your own law firm could limit your options should you wish to make a career change.

Furthermore, right now is likely one of the most difficult climates to open a law firm in recent memory. The demand for legal work has dried up in many practice areas, and competition for legal services is very high. In addition, lawyers looking to make new connections cannot do in-person pitches, attend networking events, or pursue many of the other strategies lawyers use to develop new business. Even if you wanted to begin your own law firm for years, it might make sense to hold off on your plans until the economy improves.

It is difficult to predict the future, but there are some signs that the job market will improve relatively soon. Some firms are retracting their earlier pay cuts, and I have anecdotally heard of hiring picking up in some sectors of the legal industry. In addition, I do not want to imply that starting a law firm is always a bad choice, since I have truly enjoyed my experience running my own law firm, and you can make a good living with your own practice. However, I launched my firm over a year before the pandemic hit, and the economic climate is different now than it was then.

All told, unemployment is tough, and it can be frustrating to search for jobs in a down economy with little to show for the effort. Although starting a law firm can be an enriching experience, the decision to open a shop should not be made lightly, and starting a law firm should not be viewed as an easy solution for unemployment.

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Of all of the desperate, inspired, cockamamie ideas proffered by companies in dire straits to pump up stock prices or otherwise stave off disaster and demise in this fetid, pandemic-infested world, none was quite so brazen as that offered by Hertz. After the better part of a decade of bad decisions and pivots that ultimately went nowhere, the bankrupt car-rental company at last came up with a stroke of pure genius: Why not sell a half-billion dollars’ worth of stock, and we use the term “worth” loosely, as in the very regulatory filing making that offer, Hertz conceded that those shares would prove almost certainly worthless? If the stock-market Stoolies couldn’t get enough of the stuff, why not indeed?

* An Atlanta attorney has surrendered her law license after she placed a judge’s initials on a court order. Those little letters were extremely costly… [Daily Report]

* Instagram is facing a lawsuit over allegations that it illicitly harvests biometric data of users. [Bloomberg]

* Will Smith and Warner Brothers have settled a lawsuit about an upcoming biopic on the father of Venus and Serena Williams. [Fox Business]

* Attorneys for Ghislaine Maxwell are asking for more time for documents to be unsealed due to “critical new information” that has been uncovered in the case. [Hill]

* A California attorney is fighting disciplinary proceedings related to colorful comments he made to disparage a judge. [Bloomberg Law]

* The New York Attorney General has filed a lawsuit over price gouging regarding eggs. This is the third time I have covered egg price gouging since the start of the pandemic, hope I don’t look like I have egg on my face… [New York Law 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.

America’s bar examination authorities have turned to threatening Character & Fitness repercussions for their critics marking a new, darker phase of the bar exam drama. How in the world did it come to this? Also, we talk about Kanye’s double agent attorney and PACER gets a slap from the federal courts.

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

According to data collected by Law.com for the A-List law firms ranking, which top 20 firm has the highest diversity score?

Hint: The Biglaw firm received 95.5 (out of 100) score on diversity, and is ranked 13th on the list.

See the answer on the next page.

A few months ago, I discussed the legality of lesser-known hemp-derived cannabinoids which appeared to be gaining success in the United States. One of these promising cannabinoids is cannabinol (CBN). Put simply, CBN is a non-intoxicating cannabinoid that results from the degradation of THC. Because it is difficult, if not impossible, to grow CBN-rich strains of hemp, most of the CBN found on the U.S. market is the product of decarboxylation — a chemical reaction that converts other cannabinoids, such as cannabidiol (CBD) and tetrahydrocannabinol (THC), into CBN. This conversion process creates some confusion regarding the legal status of CBN.

Although CBN is not expressly listed under the federal Controlled Substances Act (the CSA), the cannabinoid is a Scheduled I controlled substance when derived from marijuana. The CSA defines “marihuana” to mean “all parts of the cannabis plant” except the stalks and nonviable seeds. Because neither the stalks nor nonviable seeds contain meaningful amounts of cannabinoids, CBN squarely falls under the definition of marijuana and, as a result, is a controlled substance.

On the other hand, CBN derived from hemp is not a controlled substance and, thus, may be lawful. This is true for two reasons. First, the Agriculture Improvement Act of 2018 (the 2018 Farm Bill) expressly removed “hemp”  from the CSA definition of marijuana. Second, the 2018 Farm Bill defines “hemp” as “all parts” of the cannabis plant, including cannabinoids, with a THC concentration that does not exceed 0.3% on a dry weight basis. Accordingly, CBN is probably lawful if derived from hemp.

Nevertheless, some argue that CBN, regardless of its source, is a controlled substance because it is produced from the degradation of THC. The proponents of this argument generally rely on two theories.

The first theory is premised on the federal Analogue Act (the AA). The AA treats any substance intended for human consumption that resembles a Schedule I or II substance in its chemical make-up and effect on the human body as if it were a CSA Schedule I or II controlled substance. But should the AA apply in this context?

The CSA expressly excludes “tetrahydrocannabinols [all forms of THC] in hemp” from the list of Schedule I controlled substances. Moreover, the effects of CBN are not “substantially similar” to those of THC. In fact, its effects are significantly less potent. Therefore, CBN that stems from hemp-derived THC should not be deemed a controlled substance analogue.

The second argument is based on the literal interpretation of “tetrahydrocannabinols in hemp,” and thus, that only CBN derived from THC “in hemp” is lawful. The reasoning here is that trace amounts (no more than 0.3%) of THC that naturally occur in the hemp plant are lawful, but THC that is extracted and isolated from the hemp plant is unlawful. This analysis fails to account for the fact that the 2018 Farm Bill expressly legalized “derivatives, extracts, [and] cannabinoids,” most of which must go through a processing phase that inevitably increases the THC concentration. Accordingly, it is reasonable to infer that Congress intended to legalize processed hemp (i.e., cannabinoids not “in hemp”) as well.

However, as reasonable as this statutory interpretation is, it fails to resolve the position taken by some law enforcement groups that treat processed hemp containing more than 0.3% THC as marijuana (i.e., a controlled substance), even if the THC concentration only increases fleetingly during the processing phase.

Consequently, though it seems clear that hemp-derived CBN should not be treated as a Schedule I controlled substance analogue, it is unclear whether CBN that results from processed hemp-derived THC is lawful, given the confusing legal status of THC not “in hemp.”

This lingering uncertainty regarding the legal status of CBN will likely need to be addressed through legislation or the courts. In the meantime, producing CBN from THC extracted from hemp should be done cautiously and with the understanding that this lesser-known cannabinoid may be treated as a controlled substance under the CSA, even if Congress did not consider or intend this result.

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Nathalie practices out of Harris Bricken’s Portland office and focuses on the regulatory framework of hemp-derived CBD (“hemp CBD”) products. She is an authority on FDA enforcement, Food, Drug & Cosmetic Act and other laws and regulations surrounding hemp and hemp CBD products. She also advises domestic and international clients on the sale, distribution, marketing, labeling, importation and exportation of these products. Nathalie frequently speaks on these issues and has made national media appearances, including on NPR’s Marketplace. For two consecutive years, Nathalie has been selected as a “Rising Star” by Super Lawyers Magazine, an honor bestowed on only 2.5% of eligible Oregon attorneys.  Nathalie is also a regular contributor to her firm’s Canna Law Blog.

The news everyone has been waiting for has finally arrived. Former Vice President Joe Biden, 77, the presumptive Democratic presidential nominee, has announced his running mate for the 2020 election. As announced on Twitter, Senator Kamala Harris, 55, has been chosen to serve as Biden’s vice president, making her the first African American and South Asian American woman to be nominated for vice president by a major political party.

Harris is a graduate of the University of California Hastings College of the Law. After law school, she worked as a prosecutor for several years in the Alameda County and San Francisco district attorney’s offices before running for San Francisco district attorney in 2003. She later went on to become California’s attorney general in 2010. Six years later, in 2016, Harris became the second Black woman in history to be elected to the U.S. Senate. Here’s what Biden said of Harris earlier today:

“You make a lot of important decisions as president. But the first one is who you select to be your Vice President,” Biden said in an email to supporters Tuesday afternoon. “I’ve decided that Kamala Harris is the best person to help me take this fight to Donald Trump and Mike Pence and then to lead this nation starting in January 2021.”

“These aren’t normal times,” Biden added. “I need someone working alongside me who is smart, tough, and ready to lead. Kamala is that person.”

Harris’s husband, Douglas Emhoff, is a partner at DLA Piper, and he’s already showing his wife some well-deserved Twitter love.

Congratulations to Kamala Harris for reaching these great political heights!

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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.

Advice columnist E. Jean Carroll’s defamation suit agains the president is back on track after the Supreme Court ruled in Trump v. Vance that “absolute presidential immunity” is really not a thing.

Last week, New York Supreme Court Justice Verna L. Saunders “construe[d] the holding in Vance applicable to all state court proceedings in which a sitting president is involved” and lifted the stay on discovery imposed pending resolution of the president’s immunity to discovery in a suit filed by former Apprentice contestant Summer Zervos, who also sued for defamation after she accused the president of sexual assault and he called her a liar.

Carroll’s lawyer Roberta Kaplan of Kaplan, Hecker & Fink immediately fired off a letter to Trump’s counsel Marc Kasowitz demanding to schedule discovery, including both depositions and retrieval of a DNA sample from the president.

After Carroll accused Trump of raping her in the dressing room of Bergdorf Goodman’s years ago, Trump denied having ever met the advice columnist, said she was “not my type,” and accused her of fabricating the accusation to sell her book. Carroll sued for defamation, pointing to a photo of the two of them together, and producing a dress she claims to have worn on the day in question and never since. Testing revealed the presence of DNA from an unidentified male person on the dress, and now she’d like a sample from the president to see if there’s a match.

In fact, Carroll’s lawyer has generously offered to be flexible on the date of deposition, postponing it until after the president hands over his genetic material for comparison.

“We propose that Defendant first provide us with a DNA sample, so that our experts can have an opportunity to test it before we take his deposition,” Kaplan wrote.

She was also mindful of the president’s very busy schedule, now that he’s back from three days of golfing in New Jersey. AHEM.

“President Clinton made time to testify under oath about allegations of sexual harassment, and so President Trump can surely make time to testify about allegations of sexual assault and defamation,” Kaplan continued. “His testimony about what he did (and what he said) will strike to the very heart of the case and offer evidence that cannot be obtained from any other sources. He is obviously required to provide it.”

Remember when the nation was regaled with a painfully detailed and likely false description of President Clinton’s manhood in the Paula Jones case? Remember when Clinton was forced to submit DNA to match with the stain on Monica Lewinsky’s infamous blue dress?

Karma’s a bitch.

Trump’s lawyers, who have used every trick in the book to drag this out, including ducking process like a child support deadbeat, will no doubt argue that the Vance decision applies only to criminal process, not civil discovery. It’s not clear whether that position will get any traction with the appellate court, particularly in light of the Jones precedent. But digging their heels in on the DNA test — which would surely take the wind out of Carroll’s sails if there was no match — is hardly a ringing endorsement of their client’s innocence.

Kasowitz Letter, August 10, 2020

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Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

I am honored to be part of this year’s curriculum at Georgia State University College of Law. Attorneys are among the most important members of your team. It’s imperative you have the right lawyers around you to assist in making the best decisions. Every contract you sign is building towards your overall dreams and goals. I’m excited to see the students get a first-hand look into some of the contracts that have shaped my career thus far.

— Kandi Burruss, a singer, songwriter, actress, entrepreneur, and star of “The Real Housewives of Atlanta,” commenting on the fact that her career will be the focus of Georgia State Law’s “Legal Life of…” course, which is part of the school’s Entertainment, Sports and Media Law Initiative. “I couldn’t be happier for my students to learn the law through Kandi’s career,” said Professor Mo Ivory. Last fall, the course focused on the Legal Life of Ludacris.

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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.