Category: News Feeds

Paul Singer, as we have noted, is used to getting his way. Well, in the matter of the bankruptcy of California’s largest utility and fiery-clearer-of-ground PG&E, Singer most certainly did not get his way. And when Paul Singer does not get his way, he tends to get cranky. This tendency, furthermore, is exacerbated when he agrees to not get his way in exchange for something, and that something is not forthcoming—especially if it is stymied in what he perceives to be some dastardly and ungentlemanly way. That Paul Singer will not abide—and Paul Singer can be a very patient man when he’s angry.

As reported by ATL and many other news outlets, law schools are increasingly moving to online classes for the fall 2020 semester. Yet, most of these schools are not offering any kind of meaningful tuition reduction for the students who are getting an online experience rather than the in-person experience they originally signed up for.

You can’t blame law schools for a pandemic. They still have to pay professors’ salaries and maintain their facilities. Still, it doesn’t seem fair to students to charge them more than the median household income to basically watch interactive YouTube. I mean, it didn’t seem fair to me, even long before COVID-19, for law schools to charge as much as they do just to serve as an entrance barrier into a profession that for most of its participants is a life of thankless toil in a job they hate (if they are lucky enough to find a job at all). I guess you’ll have to read my book if you want to hear more about that.

Anyway, the COVID-19 situation has awoken a few law students to the reality that they’re dramatically overpaying for a legal education. A rising 2L sued Harvard Law over its steadily high $65,875 annual tuition going into the fall for online classes. Students have filed two class action suits against Cal Western Law as it increases tuition costs for the fall semester, despite the new distance-learning model. There are probably going to be more of these.

The lawyers filing these lawsuits obviously see some merit to them. Other civil litigators, myself included, are skeptical. Despite being a litigator, I think litigation in general is a pretty bad way to try to solve most of life’s problems, and, despite being a progressive, I think there is a solid free market solution right in front of these students: if you don’t like how much your crappy law school is charging you to hang out in its Zoom meetings, don’t go to that law school.

Whether the lawsuits get any traction or not though, surely the pandemic is going to result in more legal education going online. As someone who taught first-year legal writing for many years, in a program that had some in-person components but had a lot of online interactions too, I can tell you that there is very little need for bricks-and-mortar classroom sessions in at least some legal subject areas. The hardest thing about the program I taught in was that it started as a pilot program, and the ABA, being skeptical of anything new and internet-related in a very lawyerly fashion, required the law school, in an abundance of caution in trying something new, to build more rigor into the program than I’ve seen in any IRL legal-writing program.

If we learn during the pandemic, that we can do more law school classes online, shouldn’t we keep it up after the pandemic? Unless made artificially into more work than it has to be, an online program is more efficient than a bricks-and-mortar program. Facilities costs would be lessened, class sizes could be increased without losing anything (unless you incorrectly think there’s educational value in an increased chance of being cold-called and embarrassed Paper Chase-style), and law students wouldn’t have to deal with the time-consuming and expensive logistics of getting to in-person class sessions.

Law school everywhere, for everyone, is not going all-online anytime soon. But it pretty realistically could be far more online, to almost everyone’s advantage, on a more permanent basis after the pandemic ends. If there could be more students at some of the established schools because of the efficiencies created by increased online learning, tuition could be lower for all of them. Students might feel more like they were getting what they paid for, because they’d be paying far less for it. The law schools would have a broader base of tuition support. The only losers would be law schools that are really struggling, whose students would be gobbled up by the growing online programs at the better schools. And even the vast majority of law schools agree there are too many law schools.

It’s something to think about, at least. Nobody’s happy that we’re dealing with this pandemic. But it’d be a shame to learn nothing from it and just go back to the deeply flawed way things were before COVID-19 forced law schools to try their hand at online learning.

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Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

With bar exams learning that at least one examinee has since tested positive for COVID, the fig leaf protections examiners implemented from spot temperature checks to signed statements have been exposed. People can have this virus without realizing it for days and that’s exactly how it ported itself into the test site.

With these dangerous exercises behind us and more looming in a few months, the push to inject common sense into the process has intensified on all fronts.

The Pennsylvania Bar Association’s Board of Governors adopted the recommendations of a task force report urging the state supreme court to adopt diploma privilege for people who graduated between April 1 and June 30, 2020. At a time when even concerned authorities are more comfortable with half-measures like online exams, Pennsylvania’s professional leaders see that as just another disaster waiting to happen.

Moreover even those with ideal home conditions will be at the whim of a storm, accident, or equipment failure that causes a loss of power during the exam. Neither public health officials nor the medical community at large can give reliable prediction of where Pennsylvania or the country will be in October 2020 as it relates to the pandemic. A diploma privilege would provide some certainty to the recent law school graduates who are trying to enter the at the most uncertain time in the history of the bar exam. While a diploma privilege does sacrifice the testing of graduates, the majority of people who take the Pennsylvania Bar Exam for the first time in July pass the test (The first-time pass rate for the July exam each of the past three years was 80%). Many of those who do not pass the bar exam the first time do successfully pass the bar exam during a subsequent test — often on the second try.

Check out the full task force report here.

Meanwhile, across the river in New Jersey, the Rutgers Law School faculty have issued a strong statement advocating for diploma privilege.

In normal times, the bar examination is a stressful professional event, perhaps the most stressful professional event that a law graduate faces prior to embarking upon the practice of law. This year that anxiety has been increased exponentially. The cost this year to the newest members of our field outweighs the benefit the bar examination normally provides in proving a candidate’s mettle to practice law. The time has come for New Jersey to join other states in turning to more a humane response to what this year has become a protracted, costly, and painful professional examination process— one that is disproportionately affecting women candidates and candidates of color.

The Rutgers statement echoes the technical concerns about online exams and cites the school’s own experience with Spring exams:

The online bar exam also assumes that all applicants have access to computers with webcams and certain amounts of memory. Not all applicants have computers that meet these requirements. Many of the law school faculty can personally attest to this fact—several of us needed to purchase equipment to hold online classes this spring. Any law graduate who now must purchase additional computer hardware just to take the bar exam will be spending money during precisely the time they are suffering financial burdens of unemployment.

Which assumes an online exam can even get that far without crashing, something we have no reason to trust as yet.

Check out the full Rutgers statement here.

Finally, the ABA is entering the space. It’s not a call for diploma privilege, but does represent a big shift from the organization’s early agnosticism on the subject. The proposal would urge every state to suspend in-person bar exams for the duration of the epidemic and commit to actually testing any online exam process well in advance of the test day so applicants aren’t finding out that the test is canceled the week before it’s scheduled.

Unfortunately, the proposal leaves open the possibility of in-person exams in the event that “public health authorities determine that the examination can be administered in a manner that ensures the health and safety of bar applicants, proctors, other staff, and local communities.” The proponents presume that this is a bar that states are unlikely to clear, but if we’ve learned anything from this week, it’s that bar examiners can convince health officials to give them arbitrary waivers assuming the state bothers involving them at all in the process until the last second. And the states using online exams always believe the platform is ready to go right up until it isn’t. These caveats may be inserted in the interest of fairness, but each may turn into more of a loophole than the drafters’ expect.

Still, the ABA is a cautious bunch so the symbolic act of even criticizing states for pursuing this insanity should be lauded. It may not be diploma privilege but it sets the stage for advocates to push… assuming state supreme courts take this language seriously.

Though that’s another thing we have little reason to trust.

You can check out the full resolution here.

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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.

This is America. We are a democracy, not a dictatorship. The Constitution sets the date for the election in November. Nothing President Trump says, does, or tweets can change that fact.

— Dale Ho, director of the ACLU’s Voting Rights Project, in reaction to a tweet sent by President Donald Trump where he suggested that the November 2020 election should be delayed. That tweet can be seen below.

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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.

California has permanently lowered its cut score in a move that legal educators have pushed for years. This prompted the L.A. Times to write a piece focusing on the hope that this move could improve the diversity of the legal profession.

As you might expect, this kicked up a ruckus on social media and it’s an almost constant stream of increasingly dumb commentary.

Most of these messages came from white people with words like “Patriot” in their bios who are always among the swiftest to point out why inclusion is the real racism. And then, right on schedule, the libertarians showed up to make a glib remark founded on an irresponsible mischaracterization:

Lower baskets… hahahaha.

But while most of the commentary comes from disingenuous conservatives, there were, tragically, a few comments of dismay from minority observers (if the Twitter profiles can be believed) adopting the frame that lowering the California cut score amounted to saying “Black and Brown people can’t pass the real test” or “this is saying Black people aren’t as intelligent as white people.” To assure these folks, don’t listen to the narrative coming from the hacks; this policy isn’t racist or condescending.

First off, these “lower” standards are still higher than almost every state in the country. California is adopting a 1390 cut score. That would still make it the 7th hardest exam in the country. New York, the nation’s legal profession capital, has a 1330 cut score. Even if the bar exam was indicative of quality lawyering — which the evidence doesn’t back up — California would still have attorneys who passed a highly demanding test.

Second, lowering the cut score will increase diversity because it increases overall numbers… because that’s how math works. Assuming the bar exam results of minority candidates are normally distributed, lowering the cut score will add a substantial number of attorneys from diverse backgrounds. It will also add a bunch of white people, but the policy doesn’t have to change the overall racial balance of the profession to be worthwhile. For a profession that’s been a white enclave for so many decades, merely adding people — even if it never moves the percentages — would be a good move. It’s enough that there will be more Black and Lantinx attorneys out there. Just adding numbers to the profession puts more people in a position to get high-impact legal experience (which matters more than the bar), serve the underserved on the wrong end of California’s massive access-to-justice gap, and to become the next generation of mentors.

There’s not even any need to claim that racial performance is different at all to justify the policy.

That said, there is a claim that there is a disparity in performance being made by some advocates of cutting the score, and while it’s not even necessary to accept that premise to support the move, we’ll go ahead and dispel the idea that this might be racist too. There are a lot of arguments for why statistically significant differences might appear on bar exam results mostly stemming from the messed up gap in how educational resources are distributed at the K-12 level compounding to produce marginally lower scores at the post-graduate level. But with the California bar exam’s old 1440 score, the problem was even simpler to diagnose.

At 1440, more than 100 points over the New York passing score, the California bar exam wasn’t looking for competency, it was looking for the secret password. Law schools talk about “thinking like a lawyer” but the difference between a passing grade everywhere else in the country and a passing grade on the old California exam was demonstrating a mind so steeped in the process of thinking like a lawyer that it transcended mere study. This was a score designed to reward third-generation attorneys who grew up thinking like lawyers ever since their parents made them present an oral argument for going to Disneyland. It was constructed in a way that reinforced existing privileges that, for all the reasons outlined above, were concentrated among white people.

There is no looming crisis of incompetent California attorneys. The expansion of diversity by pure headcount is more than enough to justify the change. And to the extent minority students are getting lower scores, it’s not because they aren’t capable but because the old cut score was designed for exclusion.

Now please stop populating my “bar exam” feed with ill-informed complaints about the California cut score when there are real issues with COVID outbreaks that I need to follow.

California is easing its bar exam score, which critics argue fails to measure ability [LA Times]

Earlier: California Bar Exam Moves Online… And Finally Lowers Cut Score

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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.

As remote work has become the new normal, more and more companies are implementing applications like Slack, Zoom, and MS Teams for operational efficiency.  As a result, data is taking on new formats, and is growing at exponential rates.  From an eDiscovery standpoint, it’s hard to keep up.

Whether you are an attorney or consultant advising your corporate clients, or an in-house legal professional, please join us on August 12th at 2 p.m. ET / 11 a.m. PT to find out how to best prepare for eDiscovery in the cloud.

You’ll learn:

• The unique challenges of cloud data
• How to form a proactive data management plan for cloud tools
• What the options are for cloud-based eDiscovery
• Best practices for retention and preservation

By filling out the form you’re you are opting in to receive communication from Above the Law and its Partners.

In March, our world was unexpectedly turned upside down when the pandemic hit, and the world as we knew it is now a thing of the past. COVID-19 has touched nearly all aspects of our lives, from our social gatherings (or lack thereof) and how we shop to where we work and how we use technology to get work done. How many of these changes are merely temporary, and how many are permanent, remains to be seen.

The legal profession has not been immune from this new world order. The majority of lawyers are working remotely at least some of the time, and many large and mid-sized firms have announced that work-from-home policies are in place until at least the end of the year.

As a result, remote working tools are being used more often than ever before. Courts are conducting jury trials and hearings via videoconferencing. Lawyers are using cloud-based legal software for document management, e-signatures, billing, invoicing, payment processing, communication and collaboration with clients and colleagues, and much more. Because of COVID-19, the legal profession is rapidly adapting to technology at rates never before seen.

Remote Working Becomes The Norm

This trend is borne out by findings from the most recent survey on the impact of COVID-19 on the legal profession conducted by MyCase (note that I am the legal technology evangelist with MyCase). As part of the survey, respondents shared some of the new procedures and technologies that their firms had implemented in response to the pandemic:

“Contactless service. Clients need not travel to our office, and can do everything remotely.” -Alan, DC Metro Immigration

“Offering remote consultations to our clients.” -Deborah, Pittsburgh Family Law Services, PC

“We have all staff working at home, all client meetings are virtual, using online signatures and notarization. We’re making it as easy as possible for clients.” -Michelle, Howser & Associates

Remote working and the technology that supports it have become the “new normal” for law firms. Now that lawyers have gotten used to using these tools, they’ve begun to realize — and appreciate — the many benefits that they offer, including increased convenience, flexibility, and cost-effectiveness.

Is This A Lasting Trend? One Survey Says: Yes!

This newfound technology adoption by lawyers begs the question: Is the pandemic permanently changing our profession? The answer, according to the results of a number of recent surveys and the opinions of experts, is a resounding “yes.”

For example, there’s the recent poll conducted during an Association of Legal Administrators webinar. The legal administrators surveyed overwhelmingly believed that many of the effects of COVID-19 on the way that law firms operated and conducted business were not temporary and would have a long-term impact.

Notably, as explained by my fellow Above the Law legal technology columnist, Bob Ambrogi, the poll results showed that of the legal administrators who responded to the poll:

91% believe the changes in working practices brought about by the pandemic, including more remote working, are permanent.

Three-quarters of them believe that the current situation will accelerate law firms’ plans to change their back-office services structure.

And 74% either agree or strongly agree that COVID-19 has made their staff more willing to change their working practices.

The Experts Weigh In

But what about the experts? Do they think the changes wrought by the pandemic will be temporary or permanent? According to experts interviewed for a recent ABA Journal article, many of the changes are expected to be long lasting — in some cases, permanent.

For example, videoconferencing is widely believed to be one of the COVID-19 trends that will be most likely to stick once the pandemic is over. Lawyers have adopted to Zoom like fish take to water, in part because the convenience and cost savings of videoconferencing are highly appealing. That’s why, according to Texas Supreme Court Chief Justice Nathan L. Hecht, videoconferencing is here to stay:

Hecht, who is also president of the Conference of Chief Justices, expresses confidence videostreaming technology will be used in Texas courts even after the current pandemic. He predicts other states will likely do the same because of the benefits the technology provides lawyers and court personnel who live in geographically large states or rural areas.

Similarly, remote working and the tools needed to facilitate it aren’t going anywhere either. One law firm shareholder explained that as the profession becomes increasingly accustomed to remote meetings, the resistance to this concept will fade, since remote working tools make it possible for lawyers to get work done from any location, even in the face of uncertainty:

Scott A. Forman, a Miami-based Littler shareholder, says he expects remote litigation will continue beyond COVID-19. “I anticipate that folks who were resistant to remote meetings and feeling that everything needed to be in person, including depositions, that that resistance will dissipate as time goes on and people get used to this new normal,” Forman says…Tools that make it easy for lawyers at a firm to collaborate while working from home also have gained traction.

Similarly, cloud-based software has continued to gain traction as a result of the pandemic, since it makes secure and streamlined remote working possible. Law firms that were already in the cloud were able to easily transition to remote work when the pandemic hit, while many firms using premises-based software were forced to begin the transition to cloud-based software so that their employees could securely communicate and collaborate. As one law firm partner explained, moving to the cloud is no longer an option — it’s a necessity:

Michael Moradzadeh, founding partner and CEO of Rimon Law, says “it’s reckless in some ways” for a law firm not to be cloud-based in a climate where remote working is essential… “I think this painful experience will push a lot of people to ask, ‘Why aren’t we in the cloud?’” says Moradzadeh, who is based in Silicon Valley. “The argument that it is not secure is just outdated at this point.”

Last, but not least, there’s one final piece of evidence that remote working will be the norm post-pandemic. Not only is remote working easily accomplished using cloud computing software, it also saves money. After all, real estate is one of the highest overhead costs firms face — and the fewer employees working in the office, the less space a firm needs. Kent Zimmermann, a consultant at Zeughauser Group who advises law firm leaders, emphasized that the potential cost savings resulting from a larger remote workforce post-pandemic is a very enticing inducement for many law firms:

Zimmermann … has spoken to several law firm managing partners and chairs who say they think their firms will occupy less real estate moving forward, perhaps materially less. “There was already some movement in that direction, but I think this will accelerate momentum toward less big corner offices [and] more flexible arrangements in more firms for more people,” Zimmermann says.

So are the short-term changes embraced by law firms because of the pandemic here for the long haul? According to the experts, all signs point to yes. I happen to agree with them. Of course, only time will tell if we’re right. What do you think? Do you agree?

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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.

Who could have seen this coming? Well, pretty much everyone.

Back in March, the law firm of HWL Ebsworth, an Australian firm with over 850 attorneys and 1,250 employees total, refused to close their offices amid the growing pandemic. As Roll On Friday reported at the time, an insider at the firm said, “I suspect that one of the reasons the firm is reluctant to let people work from home is the lack of proper IT infrastructure.” The firm tried to publicly push the blame onto mental health concerns, saying of working from home that “social isolation and operating within less than optimal working conditions” had the “potential to increase stress levels.” I guess the firm doesn’t think forced potential exposure to a deadly virus is stressful at all. [Insert all the side eye.]

The firm even went so far as to say they wouldn’t firm “blindly” follow other firms shutting their offices “like a lemming.” Whatever the opposite of compassion is, that’s what HWL Ebsworth is showing for their employees that had to trudge to the office daily when plenty of giant law firms are showing just how straightforward a WFH policy can be in the legal industry.

In any event, the coronavirus has once again shown that it doesn’t care how badly you wish for it to go away; if you do stupid things (looking at you Florida), there will be consequences. As Roll On Friday reports, there’s been a COVID-19 outbreak linked to the firm that has public health officials concerned.

On 6 July, an  HWL employee tested positive for coronavirus and a floor of the firm’s Melbourne office was closed. Staff were sent home as the premises were deep-cleaned, and two more employees were confirmed as having been infected.

[Managing partner Juan] Martinez told staff they were expected to return the following Monday “barring any issues”, according to the Australian Financial Review. He said “it is not an outbreak that originated from our office, and it didn’t arise as a result of our operating practices”.

But then three more cases were detected, bringing the total to six so far, and Victoria health authorities publicly named the firm’s Melbourne office as a ‘key outbreak’ site.

This forced the firm’s hand, and they announced employees could work from home if they wanted. But that might have been too little, too late. Employees say they were left in the dark as the infections spread, and now the firm is under investigation:

But a number of employees claimed they were kept in the dark by the firm about the Covid cases, and only found out about the infections after the health chief’s announcement, it was reported. Worksafe Victoria, the statutory body which assesses workplace safety in the region, confirmed it is now investigating the firm.

It’s a shame it took people actually getting sick for the firm to make the smart decision.

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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).

And so it begins.

With over 20 jurisdictions holding in-person bar exams this week, many with nominal adherence to basic public health guidelines, it was inevitable that we’d learn that the novel coronavirus also managed to sit for the exam. We’re now hearing that Colorado is the lucky state to have the first news of a positive COVID patient taking the exam:

Colorado had an opportunity to join the enlightened Western states of Utah, Washington, and Oregon and just grant diploma privilege, but decided instead to go forward and characterize advocates as lazy people who “don’t want to take the exam.” In reality, the applicants pushing to call off the possible superspreader event were people who “didn’t want to expose themselves to a deadly virus.”

This will not turn out to be an isolated incident. We have bar exams relying on spot temperature checks despite knowing for months that the virus is highly contagious in pre-symptomatic patients. Those taking the test in other states assuredly exposed themselves too. And unfortunately they may not even get the heads up the Colorado applicants have.

Hopefully, the use of masks and copious hand washing kept the threat contained and no one else is going to get sick. But the unnecessary terror that the bar examiners just heaped upon 200 or so applicants is flat unacceptable.

And, yes, the blame should fall on the Colorado Supreme Court and its bar examiners. Given the timing, it’s most likely that this anonymous student knew they were positive when they took the test and that was an ill-advised and dangerous move, but consider the hand they were dealt. The powers-that-be who are supposed to be protecting the profession stacked the incentives this way. They’re the ones who said, “Take this test now or you won’t be able to get your license in time to start work… in a global economic crisis where attorneys are getting furloughed and laid off.” In that universe, variations of “we told people not to come if they were sick” are basically the echoes of a bully declaring “stop hitting yourself.”

Generally speaking, it’s a cop out move to place all the blame on the least powerful actor for carrying through on a bad decision set up by the policies of the more powerful. The powerful should bear that responsibility. It’s a lesson the rest of us learned from Spider-Man.

In the meantime, everyone who took the bar exam this week needs to quarantine themselves from friends and loved ones now. After persevering through the most grueling examination of their lives, they can’t even trust themselves not to infect people they care about. That’s their prize for playing their parts in this hazing ritual.

All this risk and cruelty when there is no data supporting the necessity of the bar exam. It’s just a f**king game to these people.

Earlier: Amid Infection Spike, State Supreme Court Doubles Down On July In-Person Exam
Bar Exam Spokesperson Tells Newspaper That Folks Worried About Health Are Just Lazy
Hey, Law School Students! State Offering $18/Hour To Sit In The Middle Of COVID Superspreader Event!

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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.

Divorce isn’t known to bring out the best in people. And in some cases, it brings out the pure blind animus that animates certain Martin Lawrence movies. This seems the only possible explanation of Cooper vs. Hohn, formerly Cooper-Hohn vs. Cooper-Hohn.

You see, after Jamie Cooper cured her husband Chris Hohn of being a bastard, he founded a hedge fund that pledged one-third of its management fee income to a charity dedicated to helping children, hence it’s not-at-all-creepy name: The Children’s Investment Fund. Some years back, he stopped doing this, ostensibly because it had enough money to solve all problems faced by children, although coincidental evidence suggests it had more to do with the fact that the Cooper-Hohns were going to go back to being Cooper and Hohn.