Category: News Feeds

Former AIG chief Hank Greenberg and former New York Gov. Eliot Spitzer have a lot in common. Both are children of Manhattan, used to getting their way and extremely rich. Oh, yea, and both were forced to resign in disgrace at the pinnacles of their careers. Still, given that Spitzer’s pursuit of Greenberg helped lead to the latter’s resignation (well, retirement) in disgrace a few years before his own, leading to a genuine loathing between the two so fierce that Greenberg has spent the better part of his 80s and 90s litigating his downfall rather than, say, with his grandchildren and beloved dog, it’s a bit gauche to notice the similarities in Greenberg’s presence. But so exasperated was the judge overseeing Greenberg’s defamation suit against Spitzer—who called AIG’s accounting under Greenberg “fraudulent” on television just after his successor as New York attorney general did in a legal settlement Greenberg signed off on—that he went there.

As numerous people within the legal profession know from firsthand experience, many court conferences, depositions, and mediations have been occurring remotely because of the COVID-19 pandemic. I have attended court conferences and depositions virtually throughout my career, since clients sometimes do not wish to pay travel time for such proceedings, and courts often permitted counsel to appear by remote means before the pandemic. However, I never participated in a virtual mediation prior to the pandemic, and I was extremely skeptical that they could be effective. Nevertheless, recent experiences have shown me that virtual mediations can be fruitful in the right circumstances.

In-person mediations are a unique experience, and there is definitely a science around getting all parties involved in a case together to discuss a matter. Anyone who has been involved with a good mediation knows that an effective mediator does not just hold proceedings in one room with all relevant parties. In fact, mediations often involve a number of different rooms, so the parties can be separated and the mediator can discuss matters with certain parties at one time or another.

I am willing to bet that many people will also agree that successful in-person mediations usually involve snacks and other food (sometimes, really good food!). In fact, I love attending in-person mediations at the office of a mediation service for the amazing catered food that they typically provide. The offices of mediation services usually look like offices of Silicon Valley startups (I’ve never been to such an office, but I’ve seen every episode of the show Silicon Valley), and they may have cold brew on tap and really expensive-looking espresso machines to keep people powering through the proceedings. Of course, eating and drinking with your adversaries and co-counsel can go a long way toward relaxing people and leading to the resolution of cases.

Before beginning my first few mediations through remote means, I was extremely skeptical about how virtual mediations could be effective at resolving cases. I was also incredibly sad that I would not be provided amazing food and drinks during virtual mediations like I was used to receiving during in-person mediations. However, the virtual mediations I have participated in so far have been fruitful for a number of reasons.

For one, mediators still have the ability to move parties in virtual mediations into virtual “rooms” just like parties may be separated into different physical rooms during an in-person mediation. However, the process of moving people into such spaces is much more efficient, since the mediator just clicks a button. This preserves one effective method of mediators, which I was not expecting when I began my first mediation by Zoom.

In addition, waiting in a virtual “room” with other parties, and being in your home or office during a virtual mediation, can help attorneys more effectively use their time. Mediations are often a game of “hurry up and wait” as parties often only spend a fraction of the time with the mediator as the mediator confers with various parties associated with the mediation. During in-person mediations, attorneys need to wait for the mediator to get to them, and the rest of the time is basically unused. However, being in the office or at home during the proceedings may empower attorneys to catch up on administrative work, more easily review materials related to the case that is being mediated, and complete other tasks. Conducting mediations virtually allows attorney to be much more flexible with their participation in a mediation.

Moreover, virtual mediations may allow parties to better use their time than if they were present at in-person mediations. During in-person mediations, parties need to change rooms, the mediator needs to move from room to room, and there is often a substantial amount of wasted time. However, during a virtual mediation, no one needs to change rooms, and the mediator can instantly move from one virtual “room” to another. As many people within the legal profession already know, mediations can be costly, so any time saved is beneficial to clients and attorneys alike.

Also, people can still bond with each other at virtual mediations just like they can during in-person mediations. Attorneys involved in virtual mediations can still talk about the case in sidebars and in front of the entire group through Zoom or other similar apps just like in person. Also, it is sometimes endearing to see attorneys logging in from their homes and offices, which lets everyone see a side of these lawyers that is not always present. During virtual proceedings, I have seen pets, met significant others, and heard children in the background, and this all helps remind attorneys that other lawyers are real people just like them trying to juggle work and personal obligations during the pandemic.

All told, virtual mediations may not make sense after the pandemic subsides, since there are many benefits to getting all parties to a case in one room. However, virtual mediations still have value and are useful during the ongoing pandemic. The only downside is that attorneys cannot partake in the amazing food and drinks usually offered at mediation service offices during virtual mediations. Perhaps mediators can mail care packages to mediation participants so they can experience this important part of the mediation process! In any case, virtual mediations allow parties to discuss a matter in an efficient and effective way, and parties should be open to holding virtual mediations.

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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.

Parenting can be tricky. But what about determining who, exactly, is a parent to a child? That should be easy, right? The parent either gave birth to the child, is genetically related to the child, is married to the person who gave birth, or adopted the child. Oh wait, or if they held themselves out as a parent to the child, as we’ll see today. Hmm. Okay, maybe this isn’t so simple.

Courts are increasingly recognizing that families take many forms. Those forms often include unmarried individuals and blurred lines as to who exactly is a parent. The Kansas Supreme Court recently took up such a case, but opted to avoid ruling on the complicated facts, and instead remanded the case for new proceedings in line with state law. Every parent and potential parent, especially those in same-sex relationships in Kansas, should pay close attention.

The Case. On November 6, 2020, the Kansas Supreme Court issued its ruling In the Matter of the Parentage of MF. While there was conflicting evidence on the facts, in short, two women lived together in a relationship. During the relationship, the woman who carried and delivered the child underwent intrauterine insemination with donor sperm to become pregnant. She successfully conceived and gave birth to a child. When the relationship later ended with her significant other, the woman married a man. At that point, the former significant other brought suit for recognition as a parent of the child.

Mixed Evidence. The facts are hotly contested as to the intentions of these two women. The significant other argued that she did in fact want a child, but the parties disputed whether it was ever intended for her to be a parent to the child, and whether she had ever held herself out or acted as a parent. The significant other presented evidence in support of her role as parent, including her presence at the insemination procedure and a joint baby shower held for both women. Other evidence, however, painted a different picture, that of the woman who carried and delivered the child doing all or essentially all of the parenting work, as well as the significant other providing little to no financial support for the child.

The trial court and the court of appeals both ruled in favor of the biological mother, determining that the significant other was not a parent to the child. The court of appeals reasoned that the couple did not have either a written or unwritten parenting agreement in place, and that there did not appear to be a “meeting of minds” between the couple when it came to understanding the significant other as a parent.

Reversed. In an about turn, the Kansas Supreme Court reversed the ruling of the district court and the court of appeals, sending the case back to the district court to reassess the issues with specific instructions. These instructions are important for anyone in Kansas having a child — LGBTQ+ or not — while in a relationship where they are not totally clear that they want their partner to be their child’s parent forever and ever.

Instructions. First, the court found that no agreement of parenting, either written or unwritten, was required under Kansas law to establish a parent-child relationship.

Second, the court found that the parent in question need only show that he or she “notoriously recognize[d]” their maternity/paternity of the child through a preponderance of the evidence (a fairly low standard), to then shift the burden to the other parent to rebut the presumption of that parent-child relationship by clear and convincing evidence. (That’s a very high standard!)

The Sunflower State’s Supreme Court specifically shut down the court of appeals’ erroneous characterization of the “notoriously recognize” standard to include “open and notorious demonstrations of parenting” or “open and notorious assumption of parenting responsibilities.” Those weren’t the right standards, the court said. Ruling that a court need only determine that parent notoriously recognized their parent status at birth, but specifically not requiring any follow through or actually parenting.

Consent, Once Given, Can’t Be Taken Back.

In good news, for parents concerned that anyone in the world can notoriously acknowledge that they are a parent to someone else’s child, the Kansas Supreme Court did apply another standard, not found in Kansas law, but based on U.S. constitutional precedent in a case called Troxel. The Kansas Supreme Court argued that it was indispensable that the woman who carried and delivered have consented to the significant other’s parent-child relationship in the first instance. But once that consent was given, it endowed the significant other with the same and equal right to parenthood. And once that happened, there would be no take-backsies. In other words, if you consent to your partner being a parent to your child at the time of the child’s birth, and partner notoriously acknowledges that they are a parent, you can’t rescind that consent or revoke that right. Even if said partner turns out to be a terrible parent or terrible a person. Maybe both!

Five Take-Aways

I had a chance to speak with Kansas assisted reproductive technology expert attorney Christina Miller about the case. Miller succinctly summarized the 46-page ruling as having five key takeaways:

1. When assisted reproductive technologies are utilized to conceive a child, Kansas parentage laws are the appropriate laws to establish parentage, not the state’s adoption laws.
2. Kansas parentage laws are now clearly gender-neutral and apply to married and unmarried couples equally, without regard to whether the couple is same- or opposite-sex.
3. Written coparenting agreements are best to show intent to parent, but are not required.
4. The court will look at the intent of the couple to coparent at the time of the birth to determine if the nonbirth/nonbiological parent has parental rights.
5. When the nonbirth parent shows mutual agreement and acceptance/display of parenting at birth of the child, the nonbirth parent is entitled to a presumption of parentage.

While Miller did not include a number six, it is, clearly, to talk to an attorney, like Miller, before you find yourself in this situation.

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Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

 

“Maybe I don’t understand what you mean by strict scrutiny,” Rudy Giuliani admitted yesterday in open court. Just moments earlier he’d answered “the normal one” when questioned by U.S. District Judge Matthew Brann as to what standard of review should apply in the Trump campaign’s windmill-tilt lawsuit to get the election results overturned in Pennsylvania.

Should a “rational basis scrutiny” apply, wondered His Honor, unleashing an extended rant from America’s mayor on the irrational way that Philadelphia County counts ballots. In fact, Giuliani had a whole lot to say about vote counting in Philly, Pittsburgh, Atlanta, Detroit, and Milwaukee. Probably a coincidence that he chose to attack voters in cities with large Black populations, right?

Since the case was filed on November 9, the Trump campaign has lost two sets of lawyers. The plaintiffs also amended their suit to remove allegations that Republicans were illegally excluded from the canvas after the Third Circuit ruled that a candidate lacks standing to sue the state to enforce its own laws.

But excising five of seven counts didn’t stop Giuliani from going on an extended, freestyle rant alleging “widespread nationwide voter fraud” by Democrats to “hold back votes” to put Joe Biden over the top. Later, he admitted that the instant case alleged no fraud, but hinted that he might just put some in the third amended complaint, so stay tuned!

“You’d have to be a fool to think this was an accident!” he thundered, citing as  evidence that elections officials had pre-ordered plexiglass barriers to separate observers from county employees during the count. And despite the fact that the allegation of illegal exclusion was no longer a live issue in the case, Superlawyer Rudy attempted to introduce photos of canvas observers using binoculars as “exhibits.”

During a hearing on a motion to dismiss.

Without providing copies to defense counsel.

Giuliani only relented when the Pennsylvania Supreme Court released an opinion finding that the trial judge had erred by issuing an emergency order to allow canvas observers to stand closer, holding that the legislature had vested county elections officials with discretion to arrange a safe count during a viral pandemic.

Which left only the claim that contacting voters who’d botched their mail-in ballots so they could vote provisionally in-person somehow violated the Equal Protection Clause. Secretary of Commonwealth Kathy Boockvar issued guidance to all counties that they could contact voters who had “spoiled” their ballots and allow them to “cure” their votes at the polling place. Four “blue” counties did so, but most “red” counties did not. In the Trump campaign’s telling, Secretary Boockvar exceeded her authority by explicating voting procedures — although supervising Pennsylvania’s elections is her actual job — and voters who failed to submit legal ballots were somehow disenfranchised by voters in other counties who were allowed to correct theirs.

Why didn’t the plaintiffs sue the counties which failed to allow for ballot cure, the court wondered. To which Mr. Giuliani responded that ballot cure is illegal under Pennsylvania law as attorneys for county elections boards must have told their bosses. But he didn’t cite any statute or caselaw to support his argument, because it does not exist.

The hearing ended as it began, with the president’s attorney hilariously flubbing basic civil procedure. When asked if he could comply with a 5 o’clock Wednesday deadline to submit a reply to the defendants’ motion to dismiss, he responded that he was all ready to hand in his amended complaint. Upon being reminded that he’d need leave of the court for (another) mulligan, Giuliani promised to submit them both together, so if Judge Brann approved his motion, the new complaint would already be right there in his lap.

President Obama finished his eight years in office without any scandal, and that’s largely a credit to Dana. It’s why he asked her to help manage his post-presidency transition, and it’s why it’s no surprise Joe Biden would ask her to help restore ethics and integrity to the White House.

— Eric Schultz, who has served as a spokesman for former President Barack Obama since 2011, commenting on President-elect Joe Biden’s decision to appoint Dana Remus as White House counsel. Remus is a graduate of Yale Law, a former clerk for Justice Samuel Alito, and a former Cravath associate. She served as the White House ethics lawyer for President Obama and has represented the Obama Foundation as its general counsel since he left office in 2017. Remus also served as general counsel of Biden’s 2020 presidential campaign.

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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.

Thanks to the coronavirus crisis, Biglaw firms across the country have delayed the start dates of their incoming associates out of an abundance of caution. While it’s true that a few firms started their first-year associates this fall, the rest have opted to bring in the their new blood in or about January 2021. But now, we’re hearing that some first-year associates will be starting even later than that.

Which Biglaw firm will be punting some of its incoming associates into June 2021?

Sources have told us that Schiff Hardin — a firm that brought in $186,437,000 gross revenue in 2019, ranking 158th on the Am Law 200 — recently made this decision. If you recall, the firm instituted some of the largest associate pay cuts we’d heard about during the height of the pandemic, with attorneys in certain practice areas taking an astonishing 50 percent hit. The firm reinstated those compensation cuts and will make all of its employees whole by the end of December, but these start date delays for first-year associates are a new bump in the road.

We contacted the firm for comment, and received this statement from a spokesperson:

We have 10 first-year associates joining the firm; five are starting on January 4 and the other five will start on June 1. Those whose start date we delayed will receive a stipend from the firm.

When we asked for insight into why the Schiff Hardin decided to defer some of its associates until June 2021, a firm spokesperson told us, “It continues to be part of managing our business prudently through the pandemic.” That being the case, we certainly hope those stipends are generous because these new lawyers are losing almost an entire year of practice with the firm they hoped to call home.

Schiff Hardin is the first Biglaw firm we’ve heard of that’s made the decision to start some of its 2020 incoming associates so late in the game. Is this something that other firms are considering as well? Please email us at tips@abovethelaw.com or text us at (646) 820-8477 to let us know.

Best of luck to the class of 2020 Schiff Hardin associates who will start their careers at the firm a few months after their colleagues in the same class year and a few months before class of 2021 associates are slated to start theirs. The unique situation these associates face will be interesting, to say the least.

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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.

The festive season is already going to be a little dimmer than most years thanks to the pandemic and global economic meltdown. But over at Kasowitz, the holidays are just another opportunity to extend their brand — a brand that’s recently gotten them openly mocked by the Lincoln Project — by suing their own custodial staff.

The NY state court summons — dated last week — names ABM Janitorial Services Northeast and Quality Building Services as defendants in an action for “breach of contract, breach of the implied warranty of good faith and fair dealing, and unjust enrichment,” arising out of alleged overpayments to the tune of $563,717.31.

Obviously the summons doesn’t provide a lot information and the complaint is not readily available online yet, so we can’t pass judgment on the merits of this action. Could Kasowitz be trying to recover payments for custodial services charged while out of the office? Because that could drastically change what a client might need from a janitorial contract. On the other hand, custodial services are broader than just picking up after people who leave a cloud of crumbs around their desk after eating their fourth straight meal in the office and a lot of what they do is necessary even if no one is showing up. And how many months does it take to get half a million behind before it gets to this point? It will be interesting to see the whole scope of this action.

But aside from the substance of the claim, as we often point out, the business of law is as much about the business as it is the law and sometimes discretion is the better part of valor when it comes to protecting the former. After a public clowning for advancing claims that Jared Kushner was defamed by his own direct quote and coming off a year that saw a disturbing revenue miss, maybe the holidays isn’t the time to pick a public fight with service personnel.

I mean… wait until January at the very least!

(Feel free to check out the summons on the next page.)

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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.

Welp, this has the beginning of a really… intriguing story, if only we knew the details. But so far, only the sparsest of information has been released.

So, here’s what we know.

Slaughter & May partner Oliver Storey has left the firm. Storey began work at the firm in 2006, made partner in 2016, and, according to a cached version of Slaughter & May’s website, his practice included “advising corporate, financial institution and public sector clients on a wide range of matters including bank lending, debt capital markets, acquisition financing, securitisation and restructuring and insolvency.”

But according to a statement by Senior Partner Steve Cooke, after an internal probe, “Oliver Storey has retired from the partnership with immediate effect.” Cooke went on to say:

“We expect the highest standards of behaviour from all our partners and staff. If these standards are called into question, we will not hesitate to investigate promptly and take whatever action is required.”

And what’s more is Cooke said that the Solicitors Regulation Authority (SRA) has been notified. Very interesting indeed.

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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).

It’s fun to rib lawyers for being Luddites, but in reality most lawyers understand the importance of technology and how it could — theoretically — improve their practice. After all, lawyers are laying out for new iPhones and high-end televisions, so it’s not as if they don’t see the march of technology. And, it’s not like lawyers still go to the stacks to Shepardize. Lawyers figured out electronic legal research.

Where lawyers actually stumble is adoption. An iPhone makes sense. Everyone knows that it works and the company spends considerable effort ensuring that it’s user friendly. The same can be said of the pillars of the legal research world at this point. But what is there to assure a naturally risk-averse attorney to invest considerable resources in a legal tech solution?

Thomson Reuters, one of those pillars of the legal research world through its Westlaw brand, unveiled a pair of new offerings yesterday that focus on promoting adoption for the legal consumer.

Thomson Reuters Marketplace is an online store that allows customers to “research, trial and purchase a wide range of trusted and tested solutions.” In other words, it takes the risk out of jumping into technology. There are already over 50 products in Marketplace, including ClientPay, Alteryx, and a number of options to “connect[] users to many of the powerful features of HighQ, including enhancing their workflows with ready-to-use solution templates.”

Marketplace is in beta now and is expected for full release in February.

At the same time, Thomson Reuters announced Legal Home, “an integrated digital launchpad serving as a central entry point for legal professionals to seamlessly access essential resources and information in one place.” In other words, your one stop shop for all things Thomson Reuters… and beyond.

Legal Home also provides a detailed view into a user’s HighQ sites and activity feeds, across multiple instances, to stay up to date on key tasks for matters and projects. Users also can quickly retrieve their recent Office 365 documents and add personal links to regularly visited sites for ease of access. Additionally, the latest news and industry developments are available and delivered through Practical Law Legal Updates.

As companies move toward suites of products, these sorts of “one-pane” navigation offerings are going to become more important.

As described above, Thomson Reuters Legal Home will have a place for your most trusted online resources. What’s going on down in that corner…

Someone’s got good taste.

Legal Home is free to Thomson Reuters customers and is now available in the U.S. and UK, and will soon be available in Canada, Australia and New Zealand.

So go on… don’t be scared. Try some stuff out and see what some easy-to-use technology can do for your practice.

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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.

Given the importance of well-being to the productivity and success of attorneys and the firms they work for, it’s no wonder that Biglaw is increasingly keen on offering programs focused on well-being. But how do you get overscheduled, overstressed attorneys to make time to attend?

While the benefits of a well-being program speak for themselves, offering CLE credit can be an excellent incentive for attendance. Professional development teams must tread carefully, however: it can be tricky to get well-being programs accredited. Here are 10 tips to consider as you develop yours:

1. Ensure that your learning objectives support attorney well-being. Keep in mind that well-being CLE programs must clearly be about attorney well-being or well-being in the legal profession. Program content can’t be about general (or client) well-being.
2. Focus on awareness and recognition of substance abuse or other well-being issues that impair an attorney’s ability to perform legal services with competence — and be sure to address the consequences of attorney mental health issues. Your examples should relate specifically to law firms, the practice of law, and attorneys.
3. Well-being, mental health, and substance abuse awareness topics qualify for professional responsibility credit in many states. For accreditation purposes, tie your discussions to rules of professional conduct, raising issues that may implicate attorneys’ potential ethical obligations.
4. Reference the ABA’s National Task Force on Lawyer Well-Being. The Task Force’s 2017 report identifies lawyer well-being as “a continual process of seeking to thrive in each dimension of one’s life: Emotional, Occupational, Intellectual, Spiritual, Physical, and Social.” On its website, you can find definitions of these dimensions as well as resources and recommendations.
5. Review the benefits of well-being programs. Discuss where and how to find available help (such as Lawyer Assistance Programs (LAP)), treatment options, and the benefits, success stories, and examples of addressing well-being challenges. Discuss metrics and best practices to measure the effectiveness of well-being programs, and how to incentivize attorneys and professional staff to attend these programs. (Hint: Credit is a great incentive!)
6. While practicing mindfulness is always recommended, be aware that participants shouldn’t be asked to meditate or perform other treatments or exercises during the accredited portion of your program. States will not approve meditation sessions; some, like California, explicitly disqualify it.
7. On that note, make your program more about the topic of well-being, not the treatment of attorneys’ issues. Instructors aren’t qualified to dispense treatment, and CLE regulators aren’t in the position to evaluate it.
8. Make sure all your program materials also support attorney well-being. Regulators frequently ask to see the materials for these programs.
9. Of course, you should always read your state’s CLE rules — regulators will take different stances on well-being programs. Look to other well-being programs that have been approved for examples.
10. Still not sure? Call your state’s regulators and ask for guidance!

PLI is recognizing November as Professional Development Appreciation Month, with the free webcasts of the Empowering Professional Development Series 2020: Well-Being in the Legal Industry. Additional PLI well-being programs include the upcoming live webcast Taking Control of Your Well-Being: Mental Health and Wellness for Attorneys and the on-demand roundtable programs Mental Health and Wellness for Litigators and Addressing the Perceived Stigma — A Discussion About Attorney Mental Health.

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Practising Law Institute is a nonprofit learning organization dedicated to keeping attorneys and other professionals at the forefront of knowledge and expertise. PLI is chartered by the Regents of the University of the State of New York and was founded in 1933 by Harold P. Seligson. The organization provides the highest quality, accredited, continuing legal and professional education programs in a variety of formats which are delivered by more than 4,000 volunteer faculty including prominent lawyers, judges, investment bankers, accountants, corporate counsel, and U.S. and international government regulators. PLI publishes a comprehensive library of Treatises, Course Handbooks, Answer Books and Journals also available through the PLI PLUS online platform. The essence of PLI’s mission is its commitment to the pro bono community. View PLI’s upcoming live webcasts here.