* The Supreme Court ruled that a low-level crack-cocaine offender was unable to receive a reduced sentence under a recently passed law. That’s whack… [CNN]
* A defendant acting as his own lawyer yelled at lawyers during opening arguments at his murder trial yesterday. [NBC News]
* An Indian lawyer accidentally showed that he was wearing shorts during a virtual hearing earlier this week. [India Today]
* Check out this article on the persuasive impact of Supreme Court briefs. [Juris Lab]
* Kodak officials must testify in a probe about insider trading. That should be a Kodak moment… [Bloomberg Law]
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.
Bar exam defenders (“older lawyers”) argue that the bar is necessary to protect competency. In other words, the dollars spent in bar review course and forgone economic opportunities is outweighed by the benefit of preserving the discipline’s reputation as being competent by having an exam that weeds out the “incompetent.”
That’s the claim. Don’t get me wrong. I have argued for ages that it is 100% false, and the bar exam’s chief goal is as an entry barrier. The side benefit is it makes some groups richer at the expense of law school graduates who are already practice-ready.
Bar exam defenders, what is the point of the bar exam and law school? It seems to me that we could argue there is a core set of skills we hope law students emerge with upon graduation. Those skills are then tested in the bar exam.
If that’s the case, then law schools could easily retool curriculum to eliminate the bar exam all together. Currently, the skills acquired in law school are not evenly divided or evenly allocated. While the first-year curriculum is set in stone, the 2L and 3L year diverges depending on the preferences of the student and to some degree the hierarchy of the class (journal work). What if we redesigned it and made the process more efficient?
Let us posit some goals for law school:
Legal reasoning. Law professors suggest that the purpose of all those Socratic questions is to get the student to “think like a lawyer,” to frame issues and facts to develop arguments that will make sense and carry weight in the legal community. Legal reasoning means the ability to foresee counterarguments and to dispatch with those without resorting to logical fallacies. It means the use of IRAC. It means appreciation of the inductive method that case law revolves around. Finally, it means discerning what facts matter. Odd we never talk of requiring more jurisprudence classes, though.
Learning the “Law” (Legal doctrine of the courses taught). This seems to be the big thing tested by the bar exam. Can you remember the RAP? The notion here is that law school develops the foundational materials so students know how the silos of law operate, from contracts to torts to criminal law to property. Eventually, students appreciate the relationships between the compartments, but at first the goal is to get the law under the student’s belt.
Critical thinking. The study of law is not just the study of what the law is, but also what it could have been. Policies and consequences guide law in light of the facts. Alternatives matter. So these critical thinking skills can help guide policy to make law better.
Socialization into the profession. The initial lectures tell you that you are entering into a profession. That everyone is entitled to respect and dignity, and disagreements are to be had but that decorum should carry the day. The class discussion is designed to enforce that, right up until people return to their social media. But the goal is to start that process of civility.
Learning to effectively communicate in written form. Legal writing is an art, and the people who teach it are artists. Those skills need to be honed, and that starts in the first year. And legal writing professors do much more.
Learning to effectively represent clients. Clinical faculty do a serious labor of teaching students to represent clients and engage in oral communication skills. Experienced clinical faculty can help guide students through a variety of difficult circumstances they will experience in practice, all before graduation. And clinical professors do much more.
Enhancing skills in finding the law. Law librarians communicate the skills necessary to learn how to evaluate and find different legal sources. And law librarians do much more.
So, defenders of the bar exam: Which of these are not useful? It seems that the bar exam only tests the graduate’s knowledge of legal doctrine directly, and vicariously, perhaps the graduate’s writing. There is a right answer on the bar exam, isn’t there? Not much critical thinking to apply there. In other words, the bar doesn’t test all that lawyers do. And it does not test what law professors teach.
Nor has the bar exam evolved much. While lawyers complained that law students don’t know how to read statutes, law schools added statutory interpretation and regulation. The bar didn’t. When lawyers complained that law students didn’t know how to write, we added additional writing requirements. The bar didn’t. When lawyers complained that law students weren’t “practice-ready” (as Biglaw gutted its own training programs), law schools again stepped up.
What I’m suggesting here is the bar exam is an inefficient and expensive bottleneck.
So, dear defenders of the bar exam, what if law schools were serious about restructuring? What if we compelled hard-core skills and legal writing training in the second year? What if we compelled learning all the bar exam topics, and also (because you seem to miss some serious practice areas) administrative law and statutory interpretation? What if we even compelled additional expertise (like Ph.D. field exams)?
Or do you just want us to teach the course covered by the bar exam? Let’s forget entire areas of law not covered by the bar. We can stop with covering additional writing experiences so the students take only those courses required by the bar exam?
Before you answer these questions, what is your relationship with the National Conference of Bar Examiners? Thanks.
LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here. He is way funnier on social media, he claims. Please follow him on Twitter (@lawprofblawg). Email him at lawprofblawg@gmail.com.
It would be mismanagement if somebody at these firms is not thinking about it. If they don’t have an Excel spreadsheet, where they can plug in this raise and see what happens, then they need a new CFO.
— Bruce MacEwan, founder of Adam Smith, Esq., commenting on the financial costs that go along with the latest special bonuses and raises that have spread across Biglaw this spring. For many firms, the new raises won’t be nearly as painful as the special bonuses. “I think they should have been discriminating in which associate years they gave raises too,” said Adam Smith, Esq.’s Janet Stanton, referring to the value some associates are delivering for the salaries they’re receiving.
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.
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The next day, Foley & Lardner announced that she was out, which marked a laudably quick resolution in an industry not known for quick turnarounds. The firm’s statement noted that it had decided not to touch the various “Big Lie” litigations with a 10-foot pole back in November and had no knowledge that Mitchell was running around doing the highest-of-stakes lawyering without their knowledge.
This morning, Carrie Levine from the Center for Public Integrity tweeted this now-released December email:
This places Mitchell deep in the case at least by the end of December and, language like “we didn’t include… in our lawsuit” certainly suggests that Mitchell saw herself as involved as early as December 4.
Levine wondered if this revelation debunks the firm’s Mission: Impossible level disavowal of Mitchell’s shenanigans. It’s a good question. Ultimately, I’m inclined to take the firm at its word that it tried to steer clear of these cases and was blindsided to find itself dragged into a constitutional crisis.
But that in itself reflects a disturbing trend.
From the moment this broke, the firm was adamant that it had not been retained in this matter and that Mitchell participated as a private person. Unfortunately, it’s not that easy to flip the firm affiliation switch from an ethical or potential liability perspective — a fact that likely played a big role in her departure.
It would, however, explain why the firm was unable to police the matter. If she’s not submitting the matter for a conflict check and just showing up without clearing it through the proper channels, they really couldn’t know what’s going on. Unlike the Barnes & Thornburg attorney who got immediately kicked to the curb after signing his name to the most recent MyPillow tinfoil RICO rant, Mitchell’s name wasn’t on anything. Had this call not surfaced, there’s no guarantee that Foley & Lardner would ever learn that one of their partners was cool advancing messy election arguments behind their back.
At that point, it’s all about trust. Can you really trust your partners not to jeopardize the platform with their own selfish behavior? Whether it’s an attempt to eke out another few bucks in billables by taking on a surprise local counsel gig or actively hiding a matter from the firm by playing it off as private participation doesn’t really matter — it’s about making sure everyone you work with is truly pulling the same direction.
That’s why quickly addressing this sort of behavior is important, but at some point firms need to have a reckoning about the risk of putting faith in people they don’t unreservedly trust as colleagues. Because if the last few months have taught us anything, it’s that folks who run in these circles aren’t afraid to take reckless actions. And that’s not good for any firm.
It’s not funny … but, at the same time, it’s a little bit funny.
It’s truly horrible that three NPYD officers convinced themselves that there was something off about their Shake Shack order last summer, arrested the manager, and turned the restaurant into a crime scene. Then their benevolent associations made matters worse by tweeting out bogus accusations that cops had been deliberately poisoned, triggering a wave of hostility directed at the restaurant and its manager, the plaintiff.
At the same time, it’s mildly hilarious that there’s a federal lawsuit against “Officer Strawberry Shake,” “Officer Vanilla Shake,” and “Officer Cherry Shake.” Also “NYPD Sergeant who stated When Did You Add The Bleach” and “NYPD Sergeant Who called in ESU.”
But there’s probably nothing comedic about these events for Marcus Gilliam, the 28-year-old manager at the Fulton Center Shake Shack, who was detained and interrogated after three cops placed an anonymous order via an app, found their drinks prepared when they walked in the store, threw them out after detecting a “sour” taste, accepted complimentary food vouchers from the manager, then sounded the alarm back at the station, sending dozens of cops and technicians down to investigate the “crime scene.”
An NYPD Lieutenant sent out a blast email erroneously claiming that the officers were vomiting and undergoing treatment in hospital, after which the Detective’s Endowment Association fired off a tweet alleging that the officers had been “intentionally poisoned by one or more workers at the Shake Shack at 200 Broadway in Manhattan.” The president of the Police Benevolent Association followed up with a tweet of his own, stating that “a toxic substance, believed to be bleach, had been placed in their beverages” and decrying the anti-police environment in the tumultuous period after the murder of George Floyd.
“When New York City police officers cannot even take meal without coming under attack, it is clear that environment in which we work has deteriorated to a critical level,” PBA President Patrick Lynch wrote. “We cannot afford to let our guard down for even a moment.”
Of course, there was nothing in the drinks, and Gilliam and his staff had no opportunity to target the police even if they’d wanted to. But after the PBA and DEA drew a target on their backs, Shake Shack employees faced weeks of abuse by members of the public.
So Gilliam is suing all of the above parties plus the City of New York for false arrest and defamation.
“They treated him like he was a cop killer, basically,” Gilliam’s lawyer, Elliot Shields, told the New York Daily News. “They just jumped to this conclusion with no evidence. They tried to fit this episode into this false narrative of the police being under attack, and it was outrageous.”
But not everything that’s “outrageous” is a legally cognizable injury, though. So, we’ll have to wait and see if the rancid milkshake duck cops get their just desserts.
In our last post, we examined how state law has addressed litigation finance, reviewing key cases in four states. We discussed the ongoing national trend towards removing perceived obstacles and clarifying that properly structured funding arrangements do not violate state law.
Naturally, counsel exploring litigation finance options should be mindful of case law in their jurisdiction. In addition, they should take note of any guidance issued by the relevant state bar on the compatibility of funding arrangements and professional ethics rules. At Lake Whillans we always take care to structure our funding agreements to comply with both state law and professional responsibility obligations.
Mirroring the trend in the courts, bar associations have become increasingly accepting of litigation funding. Below we review the approaches of bars in two key states: New York and California. Counsel interested in this topic may also wish to consult our priorcommentary on the American Bar Association’s compilation of Best Practices for Third-Party Litigation Funding.
New York
New York courts have for some time regularly enforced litigation contracts, including between funders and law firms. See, e.g., Hamilton Capital VII, LLC, I v. Khorrami, LLP, 2015 N.Y. Slip Op. 51199(U) (Sup. Ct. N.Y. County Aug. 17, 2015) (funder entitled to portion of law firm’s gross revenues); Lawsuit Funding, LLC v. Lessoff, 2013 WL 6409971 (Sup. Ct. N.Y. County Dec. 4, 2013) (enforcing law firm portfolio deal).
In 2018, the Professional Ethics Committee of the New York City Bar Association issued a formal opinion addressing the application of Rule 5.4 of the New York Rules of Professional Conduct (which generally prohibits fee splitting) to arrangements where funding is provided to law firms to finance a portfolio of cases. The committee opined that an agreement in which payments to a funder “are contingent on the lawyer’s receipt of legal fees or on the amount of legal fees received in one or more specific matters” would violate Rule 5.4’s prohibition on fee sharing with non-lawyers. (The committee did not address agreements between claimholders and funders.)
The NYC Bar opinion, while not binding on attorneys, was nonetheless met with fierce criticism, and the New York Bar Association assembled a Litigation Funding Working Group to study the issues further. In 2020, the Working Group released its long-awaited report, advocating changes to Rule 5.4 to facilitate access to litigation funding. The Working Group also recommended that there be no mandatory disclosure of funding in commercial litigation generally, although it did endorse disclosure in class and derivative actions.
Whether and when the Working Group’s recommendations will be adopted remains unclear. The next step with respect to potential amendment of Rule 5.4 is a review by the Bar Association’s Committee on Standards of Attorney Conduct. But in any case, the tone and conclusion of the working group’s work reflect the degree to which litigation funding has become an increasingly standard tool in both New York and other leading jurisdictions.
California
Recent developments in California also support the continued growth of litigation finance. In October 2020, the State Bar of California Committee on Professional Responsibility and Conduct released a formal opinion on the ethical obligations of counsel representing clients in funded cases. The opinion notes that litigation finance is compatible with California law, but it cautions that counsel must not allow a funding arrangement to interfere with the lawyer’s duty of loyalty to the client claimholder. Counsel are obligated to stay abreast of the relevant law to ensure that they provide competent advice to a claimholder about whether funding could assist in achieving the client’s goals.
The opinion advised: “where the funder has some degree of control of the litigation, the lawyer has an obligation to advise the client about the impact of such limitations on the lawyer’s representation.” Moreover, counsel must take care not to disclose confidential information to a funder without the client’s informed consent and should guard against inadvertently waiving privilege. This is all sensible guidance, and it reflects the best practices by which experienced funders like Lake Whillans already operate. For example, Lake Whillans, like many reputable funders, does not generally require or exercise control over the litigation in matters that it has funded.
* * *
We can expect that additional state bars will weigh in on litigation finance in due course and that the discussion of ethics in relation to funding will continue to evolve. There is no sign that professional responsibility constraints will prevent funding from becoming an increasingly common feature of the litigation landscape in every major U.S. forum, but counsel should remain cognizant of their ethical obligations. We invite counsel who wish to ensure that their funding arrangement is structured in accordance with best practice to contact Lake Whillans. We regularly provide CLE programs to law firms and bar associations on the ethics of litigation funding.
The judicial branch may not sign the paychecks of the U.S. Marshals Service, but make no mistake, the organization does two things: work for the federal courts and fail to catch Dr. Richard Kimble. So when marshals start thumbing their noses at federal judges, it’s a serious problem. When that disrespect is allegedly coordinated at the highest levels of the agency, it approaches an interbranch crisis.
Don’t worry, I’m sure Merrick Garland will get right on ignoring this too.
The Washington Post has an absolutely bonkers story out of South Dakota where U.S. District Judge Charles Kornmann outlined criminal contempt charges against three Marshals Service officials: Marshal Daniel Mosteller of the District of South Dakota, his Chief Deputy Marshal Stephen Houghtaling, and U.S. Marshals Service Chief of Staff John Kilgallon.
“Each of you is charged with conspiracy to obstruct justice, contempt of court,” said the judge, setting a Sept. 13 trial date, and requesting that the U.S. attorney’s office prosecute the case. If the office declines, the judge said, he would appoint a prosecutor.
What happened? The judge asked a deputy in his courtroom if she was vaccinated. When she refused to answer — presumably because everyone in South Dakota zealously defends their gross misunderstanding of how HIPAA works — she was told to leave the courtroom.
That should have been the end of it. Well, the deputy truthfully saying, “yes, Your Honor, of course I’m vaccinated” should have been the end of it but that’s asking far too much. Instead, according to the judge:
The marshals, in turn, took three of the defendants scheduled for hearings that day out of the courthouse. That infuriated the judge, who describes that act as a “kidnapping” that obstructed the work of the court.
One is easy enough to explain away. Two is a lot harder. Three? Good luck!
The whole thing started back in March when Judge Kornmann pushed the agency to alert the judiciary about vaccinations. That seems reasonable generally and incredibly reasonable when you’re talking about an octogenarian judge in a COVID hotspot. The agency rolled its eyes at the request, claiming it wasn’t tracking employee vaccinations — though the Post cites employees who claim the agency made them fill out vaccine paperwork.
For his part, Kilgallon had this to say:
Kilgallon also argued that any widespread court order that the deputies who provide security in federal courtrooms must be vaccinated “may negatively impact the ability of courts to conduct their business when such security is required.”
Who can forget the motto of the United States Marshals Service: “Quite the safe courthouse you got here… shame if someone decided not to protect it.”
The good compensation news is just flowing in Biglaw these days. The latest firm to announce associate raises is Boies Schiller & Flexner. The firm has undergone some major changes over the last year+, but with the latest announcement, they’re showing they still have what it takes to hang with the Biglaw elite.
The firm will move associates onto the pay scale set by Davis Polk last week, and in the email to associates (available on the next page) confirmed their commitment to staying on top of market compensation. That means associates will be making between $202,500 and $365,000, depending on class year, as base pay for associates in good standing according to the following schedule:
Remember everyone, we depend on your tips to stay on top of this stuff. So when your firm matches, please text us (646-820-8477) or email us (subject line: “[Firm Name] Raises”). 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.
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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).
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.
Kathryn Rubino is a Senior Editor at Above the Law, and host of