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While California’s decision to move to an online exam responded to the most pressing crisis facing the state, the simultaneously announced decision to permanently reduce its cut score from 144 to 139 (which they write as 1440 and 1390, but let’s use the language everyone else does) represented the culmination of a more significant, longer-term fight in the state. The state’s cut score — far higher than all but a handful of jurisdictions — had artificially capped the population of lawyers in a state with a massive access to justice gap and, in practice, tended to exacerbate the profession’s lack of diversity. After resisting calls to make the change for years, California finally made a move.

And it bears repeating that this is a permanent reduction. When other states announce reductions these days, like North Carolina’s 2-point deduction, these are temporary adjustments designed to maintain the state’s pre-approved failure rate. Despite billing themselves as tests of “minimum competency,” bar exams are not like the driving test. Instead the examiners set the cut score based on their assessment of how many people will pass and fail at that threshold. The goal is self-justification, to maintain a test with enough failures to make the test appear to be performing necessary gatekeeping. North Carolina’s deduction, or Hawai’i’s 1-point deduction are temporary adjustments based on their belief that scores will be slightly down under current conditions rather than a philosophical shift.

But almost immediately after the announcement, folks started asking, “what about my prior 140 score?” What would be done with the years and years of applicants who met the new 139 standard. And make no mistake, the 139 standard is still a high bar — New York and DC, for example, use a 133.

Now there are petitions heading to the California Supreme Court to resolve this question. There are two different approaches advocated by these petitions.

The more focused petition seeks a retroactive application to the February 2020 administration of the exam. This letter from the deans of 19 California law schools cites the recency of the now-passing result and the lack of a public purpose in making them duplicate the result within the span of a few months. Beyond the deans’ arguments on behalf of the students and profession, it’s a pretty compelling option for the bar examiners themselves. While running an online exam in the midst of a pandemic, taking a big number of potential examinees out of the grading pile would be a win for the examiners.

While drawing the line at tests in 2020 offers the strong recency argument, the deans point out that this is just their baseline request. Another petition requests retroactivity back to 2017.

Citing the fact that the exam itself is, according to its own defenders, not any more difficult than it was in 2017, then there’s no reason not to accept the, again very high, 139+ scores from back then. It’s an argument functionally supported by California’s existing policy allowing people to apply for admission based on 5-year-old bar scores — if a 144 in 2017 is the same as a 144 in 2020, then why wouldn’t a 139 in 2017 carry the same weight as a 139 in 2020? For anyone wondering “where do we draw the line?” the fact that the state already employs a five-year window as the standard for a non-stale bar exam result seems like a good line and anything less than that would seem to be a no-brainer.

It’s easy for folks to dismiss these requests at first blush. Our brains are a little too accustomed to criminal law thinking and holding the line at “it wasn’t legal when you did it!” But the arguments lined up in these petitions are compelling. I went into this article behind the 2020 extension but skeptical of pushing it back beyond that, but the state’s current policy of honoring 5-year-old scores seems dispositive.

The powers-that-be should respond to these requests quickly.

But it took them several years and a global pandemic to deal with the cut score in the first place so maybe a rapid response is too much to ask.

California Law Deans Ask for Retroactive Cut in Bar Score [UC Hastings]

Earlier: California Bar Exam Moves Online… And Finally Lowers Cut Score
Law Schools Rip Bar Exam Cut Score Recommendations
This Is What A Socially Distanced Bar Exam Looks Like… Do You Feel Safe?

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.

From salary cuts to furloughs to layoffs, the coronavirus crisis has hit the legal profession particularly hard. Unfortunately, during these unprecedented times, there is far more to worry about than hitting your billable hours. The health and wellness of loved ones — especially aging adults — is now more important than ever considering the toll that COVID-19 has taken on our elder population. Keenly aware of the added stress that caring for someone in this age group can cause, one Biglaw firm has added a new benefit to its already extensive benefits package alleviate some of those worries.

McDermott Will & Emery has partnered with Homethrive to offer all of the law firm’s U.S. employees fully covered family caregiver services. This new benefit will be available immediately. This benefit is being offered as part of the firm’s commitment to the American Bar Association’s Well-Being Pledge, a program that was first rolled out in 2018 to help lawyers in need. Homethrive will provide care guides who can offer coaching and concierge services to assist with the care of aging loved ones who live at home with MWE law firm employees. From the firm’s press release:

“As part of our ABA pledge, we are committed to providing wellness programs with a focus on mental health awareness and support to our lawyers, professional and administrative staff alike, especially during these uncertain times. We are happy to partner with Homethrive as an additional resource to an already robust benefits package that aids caregivers and their families,” said Alyona S. Richey, McDermott’s Benefits Director.

“We are delighted to be partnering with McDermott Will & Emery to help ease the burden of family caregiving that might be affecting their employees,” says Dave Jacobs, Co-founder & Co-CEO at Homethrive. “McDermott Will & Emery recognizes that especially now during the pandemic is a great time to invest in a family caregiving benefit as their employees may be worried about aging loved ones more than ever. The isolation and loneliness experienced by older adults also has the potential to significantly affect their caregivers working at McDermott Will & Emery and we commend the Firm for providing additional support to their employees during these challenging times.”

Kudos to McDermott Will & Emery for offering this important new benefit to its employees. This will really be of assistance to employees who were struggling with the responsibilities of caring for an aging loved one on top of all of their work.

McDermott Will & Emery Partners With Homethrive to Offer Employees Family Elder Care Benefit [PRWeb]

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.

It was an experience, Gillian Power said, that taught her that one can simultaneously be at the most vulnerable point in one’s life and also the most empowered.

After struggling privately for decades with her assigned gender, Power, chief information officer at the law firm Lathrop GPM in Kansas City, finally came out to herself and her family as transgender, and then made the difficult decision to also come out to her colleagues. It took her nine months to compose the letter she planned to send them, and when she finally worked up the courage to take it to work, she stashed it in a desk drawer.

But eventually she did send it — first to her supervisor and then to firm leadership, all of whom pledged to support her however they could, and then to the rest of the firm’s employees, who within an hour flooded her inbox with more than 100 messages of support.

For Kim Barrett, legal professional and paralegal administrator at Latham & Watkins in Los Angeles, her story of vulnerability and empowerment was much different. Born to a white mother and a black father, her Caucasian appearance caused many of her colleagues to conclude she was white. But when, in one of her early jobs as a paralegal in a corporate legal department, she brought her family to a company outing, the change among some coworkers was palpable.

It crystallized for her one day afterwards when she asked a lawyer if the company would be open on Martin Luther King Day. “I don’t know how you people celebrate,” he replied, “but the company is open.”

“It took everything I had not to lash out at him,” Barrett recalled. “But I needed the job.”

Barrett went on to chart a successful career, eventually earning a master’s degree in paralegal studies while working full time and raising a family. Having worked at multiple firms and corporations over the years since that incident, she never again experienced racism, at least not overtly.

But if she had the confidence she has now when that incident occurred so early in her career, she would have responded different and confronted the lawyer. And she hopes that others who witness such conduct would say something too.

Talking About Race And Gender

Power and Barrett shared their stories as speakers on a July 22 panel, “Talking Successfully About Race, Politics & Gender at Work,” presented by i.WILL — Inspiring Women Igniting Leadership and Learning — and its founder Andrea Markstrom, CIO at Taft in Minneapolis, and moderated by Anna McGrane, cofounder and COO of PacerPro.

The focus of the program was on exploring how to have meaningful conversations in the workplace about issues of diversity, race, gender, and inclusivity.

For Power, her experience of those issues comes not only as someone who grew up struggling with her assigned gender, but also as someone who grew up as a privileged white male in Apartheid-era South Africa.

So much of what she sees happening now in the United States around race mirrors the awakening that happened to many white people in South Africa when she was younger, where, she says, many white people had been completely shielded from the horrors of the Apartheid system.

That sense of while male privilege also accrued to her fear and confusion about her gender identity. “I was afforded many opportunities while presenting as a male person and realized how much privilege accrues to that.”

Power eventually moved to London, where in 2001 she obtained her first law firm job at Dentons providing technical support. In 2003, after meeting her eventual wife while on a business trip to the United States, she moved to this country and in 2008 joined Lathrop.

But even after coming out to her wife in 2013, she remained “petrified” of coming out to her coworkers. There was no precedent for her to follow, she said, as no one on the administrative side of a major law firm had openly transitioned before. And she was inhibited both by a sense of shame and by the fear of possibly losing her job and her professional relationships.

“Despite that, I was propelled forward,” she said. “The need to express who you are is one of the strongest forces within us — we can’t hold it back.”

When she did finally come out, the outpouring of support from her colleagues was overwhelming. And it provided lessons that informed not just her situation, but those of so many right now.

The conversations that we are now having in this country and globally are about vulnerability, Power said, about people saying, “I am suffering.” If we engage in those conversations with strength, with dignity, and with resoluteness, that is what produces change, “because it changes the heart of people.”

For leaders at law firms and other organizations, the lesson is to recognize that we have all these different viewpoints and to be able to find “the golden mean” or the path through these views.

“The role of leadership is to be able to do that — to have the centeredness and the awareness to hold and value all those perspectives,” Power said.

‘A Lot Of People Are Not OK’

Barrett is a former Marine who worked her way up through the ranks at Latham after earning an associate’s degree in paralegal studies in 1997 and landing a job there as a part-time night receptionist. From there, she moved into a secretarial role and then became an entry-level paralegal.

While raising two children and working full time, she earned a bachelor’s degree in justice studies and then a master’s degree in paralegal studies. In 2017, the firm promoted her into her current role, where she oversees everyone at the firm who falls under a broad umbrella of legal paraprofessionals.

As a woman of mixed race, she has always strived for diversity among her professional teams to include an array of different perspectives.

She is also aware that the events of the past few months, especially since the “infuriating and heartbreaking” murder of George Floyd, have brought to life for some what has been known for years to those in communities of color.

“Others who are not of color were able to go about in their own bubble because it didn’t affect them personally,” she said. “But now it does.”

She is also a mother who worries about her own two sons. “People of color have experienced unfair treatment by the criminal justice system since forever. This is not a new phenomenon.”

These events outside the workplace affect people in ways that they carry into the workplace, Barrett believes. “A lot of people are not OK mentally and emotionally because of things going on outside the office,” she said.

Her firm has responded by trying to give employees a safe space to share their stories and feelings, as well as to share if they have experienced racism of any kind at work. The firm scheduled an online open forum that so many people signed up for that a second one was required.

The firm has also created a Black Lives Matter group and has other programs to ensure that black culture is celebrated within the firm.

As for how to have conversations with employees around these issues, Barrett said, “You need to be comfortable with being uncomfortable.”

She cited the book Crucial Conversations, which she said has been useful in teaching her critical skills. When emotions are high, it is hard to hear each other, she said, and this book gives guidance on how to talk to each other and to communicate with honesty.

No One Said This Would Be Easy

Near the end of the program, moderator McGrane asked Barrett about that incident early in her career when the lawyer revealed his blatant racism. Had there been another person the room, what would Barrett have wanted that person to do?

“Call it out,” Barrett replied. “We have to call them out. That can be uncomfortable and scary — and it needs to be done.”

As for Power, her experiences have shown her that “every human being inherently wants to express themselves in a dignified manner, to express who they are.” The role of managers and leaders, she believes, is to figure out how they can remove obstacles to that expression.

“That’s not easy in business,” Power said. “No one said this would be easy. But the investment results are so rich.”

Robert Ambrogi is a Massachusetts lawyer and journalist who has been covering legal technology and the web for more than 20 years, primarily through his blog LawSites.com. Former editor-in-chief of several legal newspapers, he is a fellow of the College of Law Practice Management and an inaugural Fastcase 50 honoree. He can be reached by email at ambrogi@gmail.com, and you can follow him on Twitter (@BobAmbrogi).

The Civil War Amendments stitched the country back together after the rift.  The Thirteenth Amendment to the Constitution abolished slavery; the Fourteenth guaranteed all citizens equal protection under the laws; the Fifteenth prohibited states from disenfranchising people on account of race.

I’m thinking about the Trump Amendments.

First, there’s the election, of course. On the one hand, Donald Trump may surprise us all for a second time. Trump may be reading the zeitgeist perfectly: Black Lives Matter may be a symbol of hate; the majority of Americans may support the display of the Confederate flag; the silent majority may crave a law and order candidate. If that’s true, then Trump will again surprise the pollsters in November, and we’ll see what the second term brings.

On the other hand, Trump may be wrong. He may be misreading the zeitgeist entirely, and America may have moved to the left in a way that Trump has not. If that’s true, then January will bring not only President Joe Biden, but also a continued Democratic majority in the House and a small Democratic majority in the Senate. What then?

Am I wrong to think that we may see the passage of the Trump Amendments, which will try to stitch the country together again after this time of divisiveness?

The 28th Amendment, the first of the Trump Amendments, will restrict the presidential powers of pardon and commutation. This amendment easily makes its way through Congress: The Democrats remain livid about the Roger Stone commutation; they vote for the amendment in a heartbeat. The Republicans don’t object, either: After all, there’s now a Democrat in office, so it doesn’t offend a sitting Republican president to restrict presidential powers. And the few Republicans who remain in Congress were both quietly offended by Trump’s use of the power of commutation and chastened by the voters.

The 29th Amendment causes the Equal Rights Amendment to be ratified.  There’s no reason to wait for litigation to settle that issue. Whatever Americans believed in 1972, when the Senate first approved the ERA, Americans today overwhelmingly support guaranteeing women equal rights.  Trump’s sexism energized suburban women; politicians would naturally seek to capitalize on the moment. (The effort to garner public support for this amendment might involve a public relations campaign: “Grab ‘em by the Amendment!”)

The 30th Amendment deals with LGBT rights. There’s now a Constitutional right to same-sex marriage. In Bostock, the Supreme Court held that the Civil Rights Act applies to the LGBT community. Maybe it’s time to declare that the gay community, like the female community, has equal rights. Or maybe progressives will cleverly merge the 29th and 30th Amendments, so that politicians will be able to deny gay rights only by simultaneously denying women’s rights. That would be a hard vote to cast, and stranger political tricks have been played.

I’m less certain about the 31st Amendment — the one that eliminates the Electoral College by providing for the direct election of the president. The Electoral College subverted the popular vote only three times before the year 2000, but it then awarded the presidency to the loser of the popular vote twice in 16 years. Democrats would naturally be ready to abolish the Electoral College; Democrats suffered at its hands in 2000 and 2016. Republicans, conversely, might oppose this amendment. Perhaps Congress will solve this riddle by eliminating the Electoral College only 50 years in the future, thus achieving the desired result while making it less certain what political party, in what form, will benefit from the change.

How about the 32nd Amendment, to fix the Merrick Garland issue? This amendment would provide that, if the president nominates someone to the Supreme Court, does not withdraw the nomination, and the Senate does not vote on the nomination, then the Supreme Court vacancy is filled within a set number of days.  (We’d have to think carefully about this amendment, because it could be used to subvert the public good. If, in the future, an evil president and evil majority leader wanted to put Attila the Hun on the Supreme Court, then the president could nominate Attila, the majority leader could avoid having a vote, and the Hun would be seated. That’s a real problem, unless you’re convinced that we never elect people who put their personal and political ambitions ahead of the public good.)

Trump has certainly divided America, but things were worse at Shiloh and Antietam and Gettysburg. If the Civil War Amendments could unify us in the 19th century, then the Trump Amendments could unify us in the 21st.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

* A couple is arguing in a new lawsuit that weddings and receptions should be exempted from COVID-19 closures on religious grounds. Wouldn’t be surprised if the bride or groom was a lawyer — that’s a creative argument. [NBC News]

* Surveillance footage appears to link the former lawyer accused of murdering the son of a federal judge to the slaying of a “men’s rights” activist in California. [Fox News]

* Check out this interesting piece by an attorney with autism reflecting on the 30th anniversary of the Americans with Disabilities Act. [Jurist]

* Criminal courts in Pittsburgh are closed for in-person hearings until further notice after an attorney tested positive for COVID-19. [CBS News]

* The Washington Post has settled a defamation lawsuit filed by a Covington Catholic student over a viral video that was released last year. [New York Times]

* A Florida strip club is in hot water for denying two women entry because they were not with a man. We all saw RBG, this is a suspect (or should I say “quasi-suspect”?) practice. [Orlando Weekly]

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

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

According to data collected by Law.com, for the most recent National Law Journal 500 ranking, which NLJ 500 firm employs the most attorneys in Los Angeles?

Hint: This firm has 311 lawyers in the city of angels.

See the answer on the next page.