Category: News Feeds

As law school graduates plead for a licensing policy that respects basic public health concerns and some respect for the physical and psychological risks of asking students to expose themselves and by extension their loved ones to a serious and sometimes deadly disease, anyone wondering if the remaining recalcitrant bar examiners are acting upon anything but bad faith and utter contempt for the applicants, well, you’re wrong. Really, we didn’t need much more proof than reports of veiled threats of retaliation against critics in the character and fitness process, but every day brings us fresh reminders of how little the bar examination process has to do with “public protection” and how much it has to do with running an awkward Perry Mason convention.

Some bar exams have even outsourced their lack of respect for applicants. John N. Fountain of Young Moore represents the North Carolina bar exam, which plans to go off later this month despite a massive surge in infections in the state. But the exam has a waiver and isolation rooms for people actively dying during the exam so… it’s all cool. Last week, Fountain wrote a letter to a young mother and cancer survivor trying to deal with the bar exam during a global pandemic and after affirming that the examiners would grant a prior accommodation she’d requested, he decided to add some life advice in lieu of responding to her other concerns:

Should you find that your concerns as to your health and safety or that of others has become such a distraction that you cannot be prepared and at your best for the examination on July 28 and 29, 2020, then you may make the personal decision that you will not undertake the Bar Exam in 2020.

At this time, there are fewer than 30 days remaining before the administration of the Bar Exam. I urge you to spend the time wisely in preparation for the examination. It is important that you minimize distractions and focus on the upcoming examination as are the other candidates.

While this tracks the infamous, “I am altering the deal, pray I don’t alter it any further,” it’s an unfair comparison because Darth Vader said those words with far less dismissive condescension. The message is straightforward: the North Carolina bar examiners have what they think is an enforceable waiver so they’re sick and tired of having to worry about this superspreader event. And while Fountain may well have written these completely unnecessary words to any inquiry, the “quiet little girl, the men have made a decision” subtext is impossible not take away from this.

Your most recent email raises a number of questions as to future decisions or the rationale for past decisions by the Board. This is not the occasion for a policy debate. We wish you success in your future endeavors.

Yes, actually it is! Less than 30 days before contributing to one of the worst outbreaks of a deadly virus is absolutely the occasion for a policy debate! But of course the issue isn’t that the timing is off, it’s that the NC Bar doesn’t want to have a policy debate at all. It didn’t want to have one in March when states first started wondering if July bar exams would be a problem. It didn’t want to have one in April or May when the state was furiously patting itself on the back and planning reopening. And in June, when the risk of serious illness and even death became palpable, the bar examiners eschewed a policy debate and threw together some signs claiming the examiners were shielded from a lawsuit and called it good. If the time for a policy debate about this isn’t now when the f**k is it?

And the answer is “never.” Because the whole point is that the bar examiners in North Carolina don’t believe they should ever be forced to answer for their serial policy failures. Certainly not by mere applicants — you know, the people they theoretically trust with the future of the profession.

Earlier: North Carolina Also Demands Waiver In Case It Kills Anyone With Bar Exam
Concerned About COVID At July Bar Exam, Virginia Cancels Requirement That Applicants Wear Ties
Law School Implies Diploma Privilege Advocates Could Get Dinged On Character & Fitness

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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.

It’s just the flu, the test take you will.

I’ll pretend the COVID spike’s sinking.

And I’ll tell myself we must test you.

‘Cause I’m the king of wishful thinking.

–Apologies to Go West for ruining their song

BLE Member Opening Statement

Greetings and welcome to the Board of Law Examiners Zoom meeting to discuss why you think that you deserve not to kill yourself to take a test that is simply an entry barrier. We would have held this meeting in person, but to ensure our safety we decided Zoom would be better. Why do we even have a bar exam? Sure, you might cite this amazing Twitter thread about the racist history of the bar exam, but we’re here only to ensure that the bar continues with the dignity and professionalism you’ve come to expect from us BLE members.

Now, some of you have been clamoring for an online exam. We can’t have that without delaying the bar exam, costing you more money. But hey, we know you like bar loans. And, to be honest, we love all the bar exam peripheral markets, too. Some of us are even on the NCBEX board! Some state Supreme Court justices, too! Bar loans, Barbri, and, of course, the fees we charge you are ways to make sure you feel like you’ve worked hard for this.

Sure, you might have suggested that we should have planned for a COVID-19 spike all along, but we are not fortunetellers! It’s not like anyone else expected that there would be a surge in cases. Jeez. We’re doing the best we can with the information we occasionally read in the Bar Journal. Ooh, here’s a lovely article about how much we in the profession care about your mental health! I mean, once you’re in the profession. Not now.

Let’s talk about the meeting agenda. We will let the deans advocate on your behalf first. Because we recognize that they represent some semblance of the profession. But they don’t have your interests at heart! They just want to make money for their schools. We don’t see ALL of THEIR SCHOOLS going online! See? Only we truly care about you. For that reason, we will be very rude to them and hold them in utter contempt. We will roll our eyes at them and make sure you are very clear that we do not like them.

Next, we will eagerly await your stories about why you’re a lazy-ass piece of … I mean, concerned about your health. Some of us will look like we are bored or falling asleep, but that is because you have moved us so much that we can barely keep the tears from falling out of our eyes.

You might be outraged and try to take pictures of our seemingly snoozing and bored faces and claim we are cold-hearted, but we want you to keep in mind how important it is that you maintain your professionalism. You haven’t gone through character and fitness yet! No, we aren’t threatening you. We just want to make sure your deans do.

In any event, the death rate for COVID-19 is dropping, so please stop being so dramatic. There’s no reason that you all can’t show up and dress in three-piece suits (okay, in Virginia we’ll let you lose the tie) to take the bar exam.  This is about professionalism! And part of being in a profession is treating people like shit! Ask many senior partners at major law firms!

Did I mention that I took the bar exam while having appendix surgery?  These are different times indeed, my fragile test takers!

Now, some of you have actually had COVID-19 and have asked for an extension. Well, guess what? Life’s hard in the big law. Denied! Suck it up!   Yeah, sure you have COVID-19. Whatever. Just take the damn bar exam!

By the way, did you see that great article in the Bar Journal about healing with compassion?

Speaking of which, we are very concerned for your health. For that reason, we’ll be making you show up early and quarantine at the bar exam site, where we have set up cots. But that is only after you have passed our mandatory $150 COVID-19 test. While you await the result, you must sleep in your car. Please be dressed professionally.

Also, you’ll need to sign a waiver. Basically, you absolve us of all liability for forcing you to take this exam. Consider it professional courtesy.

Lastly, I just want to say how important it is that we are very civil to one another during this heated time. Please make sure to keep your remarks civil. Don’t engage in any personal attack (like pointing out that we’re sleeping or maybe have conflicts of interest). This isn’t personal. It’s business! I mean, uh, professionalism.

Speaking of which, please catch the latest mandatory professionalism CLE after you pass the bar. Professionalism is important!

By the way, if we change the bar exam date and time, we’ll let you know at the last possible minute. Because being needlessly frustrated is all part of professionalism!

Okay, let’s hear from the deans while I do some online shopping!”

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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) or Facebook. Email him at lawprofblawg@gmail.com.

Imagine that you’re an attorney in Miami, Florida, and you need to attend a federal sentencing hearing for a client. Miami just so happens to be a coronavirus hot spot but you need to be there in person because this is far too important to do online. You can’t leave your client alone in court.

What do you do?

Unprecedented times like these call for unprecedented measures. The Daily Business Review has the scoop on what one lawyer did to protect himself.

When Miami criminal defense attorney Samuel J. Rabin Jr. got out of his car and began walking down the street in a full hazmat suit, gloves, respirator mask and face shield, two police officers pulled up, rolled down their car window and said, “Is there something we should be worrying about?”

“I’ve got to go to court,” Rabin told them.

Once inside, Rabin says security officers and marshals shouted, “I don’t blame you, man!” Not long after, his fashion choice started to gain traction on Twitter.

“It would have been a nice touch if he had worn a tie on the outside of the hazmat suit,” Miami-Dade Circuit Judge Miguel M. de la O tweeted.

According to Rabin, “The judge had no issue with me wearing it. She understood, quite frankly, and wasn’t upset about it in any way.”

People are lauding Rabin as a hero — as they should. Congratualions to Sam Rabin on being a model for what lawyers should strive to be when it comes to developing meaningful client relationships and advocacy.

How far would you go to help one of your clients during a pandemic?

‘I Don’t Blame You, Man’: South Florida Lawyer Turns Heads by Wearing Full Hazmat Suit to Federal Court [Daily Business Review]

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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.

New York was one of the first states to act in response to the COVID-19 crisis, canceling the July administration of the bar exam and pledging to find a new solution for the fall and coming up with a controversial but compelling test seat rationing plan. But as infections continue to rise around the country the bar exam has pointedly not taken into account the most obvious solution — an emergency “diploma privilege plus” grant.

Now the state legislature is getting involved.

Senator Brad Hoylman, chair of the NY Senate Judiciary Committee, posted on Twitter last night that he was introducing legislation to authorize emergency diploma privilege to graduates of ABA-accredited schools during the ongoing state of emergency. As a technical matter, the draft appears to leave the decision to the NY Court of Appeals but removes any possible impediments to its authority to dispense with the bar exam entirely.

These images are available in full size on the next page.

If successful, this would mainstream the diploma privilege movement. With no offense to the Western states that have already adopted the plan, each has a relatively small and mostly regional base of applicants. New York, on the other hand, would be opening itself up to a national applicant base.

And while this is only a temporary measure, New York’s 2020 class would become a beta test for wider adoption. As the years go by and the number of disciplinary complaints fails to spike and the level of service continues to improve, it can provide the hard data to support the needed fundamental overhaul of attorney licensure. Wisconsin’s long history of success with diploma privilege is always waved off a product of a small market — a charge that will inevitably be leveled to undermine positive data from Utah, Oregon, and even Washington.

But there will be no hiding from the New York experience.

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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.

It was just last week that we said the layoffs were coming, and we hate to say we told you so, but it looks like we were right. The coronavirus crisis is far from over, and after one financial quarter has passed, it may just be getting started with Biglaw.

Sources have reached out to us regarding associate layoffs occurring at Hughes Hubbard & Reed — a firm that was recently ranked #116 on the Am Law 200 with gross revenue of $288,100,000 — in light of the COVID-19 pandemic. We’ve been told the firm is offering affected associates three months’ severance pay as well as five free sessions with a recruiter to help them find another job (and that the recruiter was hired to help “everyone” impacted, leading associates to believe these were large-scale layoffs). It is unclear at this time how many associates were let go. We’ve heard that the reason for the layoffs was there not being enough work to go around at the firm. Those who have contacted us said they were “blindsided” by the news, as the firm has been touting its financial success via email every Friday.

We reached out to Hughes Hubbard for comment. Here’s a statement from the firm:

More than three months into the pandemic, the deep impact of court closures and a slowdown in deal activity have given us a better-informed sense of the manner in which the pandemic has changed the way we do business. To prepare for that future we must take action that we have long sought to avoid and layoff certain attorneys and staff. We regret the hardship these steps cause as we, and the industry, continue to evolve to meet this changing environment. We have confidence that the action we take today will enable us to continue to serve our clients, to compete at the highest level and to deploy our people effectively.

Best of luck to all those who are affected by the layoffs at Hughes Hubbard.

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

Earlier: Am Law 100 Firm Slashes Salaries, Furloughs Staff Lawyers And Staff

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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.

Litigation funding remains a top-of-mind topic for IP lawyers of all stripes. I am very happy, therefore, to have been given yet another opportunity to conduct a written interview with a leading litigation funding executive. While the industry is well-stocked with funders of significant resources, the funder highlighted in this interview, Legalist, has a number of unique and interesting characteristics relative to its peers. From its roots in the start-up incubator world, to its Harvard dropout founders, to its use of algorithms to identify potential winning cases to invest in, to its willingness to target smaller cases for funding — Legalist does litigation funding differently than most. Led by this week’s interviewee, Legalist’s CEO Eva Shang, the company has gotten recent media attention for its success investing in cases that many of its competitors may have deemed too small and not worthy of attention. More on Shang’s impressive achievements to date follows.

By way of background, Shang is the cofounder and CEO of Legalist. She is a Harvard dropout, a Thiel Fellow, and was awarded Forbes 30 under 30 in 2018. After founding Legalist at the age of 20, she led the company through Y Combinator’s S16 accelerator program. Legalist raised its inaugural fund of $10.25 million in 2017 and its second fund of $100 million in 2019. Shang has been featured in the New Yorker, Wall Street Journal, Boston Globe, and other news outlets for her work on Legalist and access to justice. Along with her sister Melissa, Shang is the co-author of Mia Lee Is Wheeling Through Middle School, a middle-grade novel starring a girl with a disability.

As seen below, and in next week’s second installment, Shang has a strong sense of where she wants Legalist to stand in the litigation funding space. Her perseverance and hard work launching Legalist has rightly led to her current belief that Legalist is built to serve a market population that has the same need for litigation finance as others, but to date has less options to choose from in terms of attracting investment.

As usual, I have added some brief commentary to Shang’s answer below but have otherwise presented her answer to my first question as provided.

Gaston Kroub: What was the biggest challenge you faced launching Legalist?

Eva Shang: Legalist is one of the few litigation funders managed entirely by nonlawyers. When we launched Legalist’s first fund three years ago, I was 21 and had just dropped out of college. Something as simple as putting together a standard Litigation Finance Agreement was a challenge we had never encountered in school. Not to mention, without a legal background or any connections in the legal community, we had no prior firm relationships to draw from. All our business relationships had to be built from scratch.

Nowadays, Legalist has many attorneys on the team, of course, but I have to give credit to the generosity of other litigation funders in helping us along in the early days. We cofunded a number of cases with other funders, which helped us get insight into the real workings of the industry.

Legalist just announced last week that we’ve invested in over 100 cases through 81 investments. We raised our first fund in 2017, and our average investment size is around $500,000. The fact that we’re able to reach this kind of volume is entirely due to our technology advantage. We are the first litigation finance firm to use machine learning and AI technology to source and underwrite litigation investments. Our technology enables us to efficiently invest in small to medium-sized claims, which are opportunities often passed over by other litigation funders.

In other words, we are uniquely positioned to serve a segment of the market that is often written off as too labor-intensive. Even though the litigation finance market is growing at a rapid clip, the bulk of capital is invested at larger amounts. Competition for multimillion-dollar litigation investments is starting to become heated, leaving a significant gap in what we call the “David v. Goliath” cases. Cases we serve frequently feature a small company who entered into a contract with a more established player, only to see that contract broken by the other party. These are cases that involve no more than a few million dollars in damages, and can’t stomach more than a few hundred thousand in investment towards legal fees without taking away their ability to settle. That’s what makes Legalist’s approach so sustainable: the mid-market of litigation finance is where the cases are. That’s where our next 100 funded cases will come from, even as our capital under management grows.

GK: There is a lot to unpack in Shang’s answer about what makes Legalist unique. As a general matter, it can sometimes seem like there is already more capital available to litigation funders to deploy than there are worthy cases. By focusing on a less competitive segment of the market, while bringing to bear technological tools to help spot worthy cases, Legalist has been able to establish itself as a funder with a clearly defined niche. Perhaps more importantly, Legalist has proven that it is able to put its investors’ money to work, which is not a guarantee in the litigation funding realm. Making Legalist’s success more impressive is the fact that neither Shang nor her cofounder came to litigation funding with a legal background. But that perhaps explains why Legalist has been able to identify and execute on an unique approach to deployment of investor capital in support of litigation in the first place.

Next week, I will conclude my interview with Eva Shang, focusing on how she sees Legalist’s niche in the litigation funding marketplace, as well as the expected growth in the industry moving forward.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

It’s hard to imagine that there could be a German company in worse shape than Deutsche Bank, but there’s a lot about payments company Wirecard that is hard to imagine. There’s the missing and quite probably imaginary $2 billion, the CEO under arrest, the other arrests, the missing COO (whose entry into the Philippines may have been as imaginary as that $2 billion), the almost too-good-to-be-true connections to SoftBank and Credit Suisse, the police raids, the whole hopelessly foreseeable nature of the matter that no one could or would foresee.

* The Supreme Court has upheld a ban on automated calls to mobile phones. Maybe now I’ll stop getting calls about my car’s extended warranty… [USA Today]

* Ghislaine Maxwell’s lawyer says that Maxwell will never reveal the full connections between Prince Andrew and Jeffrey Epstein. [New York Post]

* The New York Attorney General has ordered a Black Lives Matter organization to stop soliciting donations in the state since the organization did to comply with the proper registrations. [New York Daily News]

* A defendant is being granted a new trial because the judge asked the witness too many questions. This is kind of reminiscent of a famous seen from The Verdict. [New York Law Journal]

* Charges have been filed against the woman who alleged to authorities that she was in danger from a black birdwatcher in Central Park in May. [BBC]

* An attorney, who is now sick with COVID-19, claims a judge ordered her to court even though she told the Court her COVID-19 test was pending and she was showing symptoms. [Bakersfield Californian]

* Law360 just named its top lawyers under 40. If I had a subscription, I’d be able to see if I made the cut, but I think I already know the answer… [Law360]

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

America does nothing for decades.

Then it jolts forward a century in the space of a couple of weeks.

It’s wonderful. But I’ve heard from a few people who find it jarring. (I’m writing about people from outside the joint where I work, naturally.  We’re actually doing pretty well with these conversations.)

“I know we’re in a new world,” my correspondents say. “But I don’t know the rules of that world. What can I say? When people say the wrong thing they’re being fired without severance. I’m not saying a peep. I don’t think they can fire me for silence.”

What’s the problem?

Renaming military bases that bear the names of Confederate generals is easy. I never thought about who Braxton Bragg (of Fort Bragg) was until this week. It turns out he was an inept Confederate general. We’re thus glorifying him for being a traitor and a racist. We shouldn’t do that. Eliminate his name.

What’s the limit on this rule?

You might think that the rule is this: “No statues or military bases or other accolades for people who are being celebrated solely for things that are plainly wrong.” Put the statues of Confederates in museums. But celebrate people who were simply creatures of their time and are being celebrated for things that are good.

Thus: You would be permitted to celebrate Washington and Jefferson because they did stuff we think was good, like winning the Revolutionary War, writing the Declaration of Independence, and so on. Washington and Jefferson both owned slaves, but we’re not celebrating them for that, and we recognize that they were men of their times.

Similarly, one could celebrate Ezra Pound, a great poet, even though he was an outspoken fascist, saved from life imprisonment or execution after World War II only by other writers who convinced the government to spare him and instead put him in a psychiatric hospital for the rest of his life. Pound was a scumbag — but he did write The Cantos, and T.S. Eliot did dedicate The Wasteland to him. We’re allowed to celebrate the good bits, right?

How about the Edmund Pettus Bridge in Selma? I know that name only for the good — the police unleashed the dogs and fire hoses but that prompted America to pass the Civil Rights Act. I learned only this week that Edmund Pettus was a grand dragon of the KKK.  Should we rename the bridge because Pettus was a scumbag or keep the name because the name is now associated with a good cause?

Washington and Lee University? Lee was a Confederate general. The fact that he was also the president of what was then called Washington College doesn’t matter. He’s being celebrated for the treason part; rename the school.

I recently got out a crayon and made some changes to my diploma. I graduated from the Woodrow Wilson School of Public and International Affairs at Princeton University. Way back when, I thought: “Wilson? Princeton student who made good. President of Princeton. Governor of New Jersey. President of the United States. World War I. League of Nations. Led to the United Nations and the system of international institutions that help to preserve the peace today. No problem with the name.”

It turns out Wilson was a scumbag. Raised in Georgia during the Civil War, he was a vicious racist, re-segregating the federal civil service, among other things. Thus, the need for a crayon: I’ve now graduated from the Princeton School of Public and International Affairs.

Look at the statues we’re tearing down. Christopher Columbus? Winston Churchill? Ulysses Grant, for heaven’s sake? I was pretty sure he was one of the good guys: He was given one slave and voluntarily freed the man. Won the Civil War. Two-term president who oversaw the good parts of Reconstruction. Prosecuted the KKK. I guess I have to study harder to figure out why we can’t celebrate Grant.

What about the pyramids, erected as tombs for and tributes to folks who held slaves? What about the nasty bits in the Bible about Sodomites?

The times they are a-changin’. The rules are uncertain. But free speech matters, even in changing times.

I understand why I’m hearing from people who are afraid to speak. But institutions should be flexible during times when we’re both drawing new lines and trying to adjust our bearings.

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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.