Category: News Feeds

A third state could soon join the two that require technology training as part of a lawyer’s obligation to undergo continuing legal education.

Two states currently require mandatory tech CLE. In 2016, Florida became the first state to do so, when it adopted a rule requiring lawyers to complete three hours of CLE every three years “in approved technology programs.”

In 2018, North Carolina followed suit, requiring all lawyers there to complete one hour per year of CLE devoted to technology training.

One other state has given what I described at the time as a “tepid nod” to tech CLE. Last year, Maine adopted a revised CLE rule that described maintaining competence in technology as an aspirational goal of CLE, but that did not require tech training.

Now, via Sharon Nelson’s Ride the Lightning blog, comes news that the New York State Bar Association has approved a committee report that recommends amending the mandatory continuing legal education rule to require one credit in cybersecurity.

The credit would be included within the Ethics and Professionalism category of CLE and would not add to the minimum number of CLE hours attorneys are required to take.

While not requiring broader technology CLE, the rule, if adopted, would make New York the first state to adopt a requirement specifically targeting cybersecurity CLE.

“Rather than recommend a general technology requirement, the committee believes cybersecurity protection is a pressing issue for lawyers and should be emphasized through a one-credit requirement,” the Committee on Technology and the Legal Profession said in its report to the NYSBA House of Delegates.

The committee, which was cochaired by Mark A. Berman of Ganfer Shore Leeds & Zauderer LLP and Gail L. Gottehrer of the Law Office of Gail Gottehrer LLC, said in its report that it was recommending mandatory training in cybersecurity both because of the importance of the issue to protecting client confidences and because of lawyers’ lack of voluntary attendance at CLEs on the topic.

“Notwithstanding reporting by the press on data breaches and, more importantly on law firm breaches, the Committee has been surprised by the relative lack of attendance at NYSBA CLEs on cybersecurity, whether in person or over webinars,” the report said.

The Maryland Court of Appeals has indefinitely suspended two members of their bar, James Markey and Charles Hancock, over an email chain that went on for a period of seven years that the court said contains “disturbingly inappropriate and offensive statements.” Three other lawyers that are not members of the Maryland bar were also on the email chain.

Markey, a former judge at the Board of Veterans’ Appeals, and Hancock, a former attorney adviser at the same Board, are no longer in the positions they held when participating in these emails. Markey was fired from his position, and Hancock retired.

In a not-at-all-subtle naming, the emails went around as the “forum of hate” and ABA Journal has some of the high(low)lights:

• Commenting on a photo of an all-white Little League team, Markey asked where the white sheets were. “‘Bonfire’ after every victory,” Markey said, a reference to the Ku Klux Klan.

• Hancock referred to the chief veterans law judge, an African American woman, as “G-Pot.” The name was short for “Ghetto Hippopotamus.” He also called the judge “a despicable impersonation of a human woman, who ought to [have] her cervix yanked out of her by the Silence of the Lamb[s] guy and force-fed to her.”

• Hancock referred to “a spot open in AA’s Forum of Gayness,” a reference to a lawyer who worked at the veterans board.

• Markey referred to a bar and said it had a “creepy looking clientele, and I’m no homophobe.”

• Markey referred to a woman who was vice chairman of the board as “baby t.” The name was short for “baby talk,” a disparaging reference to her tone of voice.

• Hancock asked about a “chick” in a photo and said, “Like to have my pee pee introduced to her va jay jay.”

• Hancock said a lawyer had nice “DSLs,” which stood for “d- – – -sucking lips.”

• Markey altered a news article about a suspended employee of the sheriff’s office. Markey altered the article to say the employee’s supporters got into a heated debate with an opponent, “a fast food working, basketball type playing man.” Markey’s alteration said the opponent “left, timidly, when 11 people causally tossed ropes at him.”

• Markey referred to the chief veterans law judge as a “total b- – – -.”

The court found that since they used their work email addresses and the messages were sent during work hours and were about work colleagues, the behavior was related to the practice of law. The court wasted few words condemning the outrageous behavior:

“Markey’s and Hancock’s statements demonstrating bias and prejudice speak for themselves and constitute abhorrent conduct,” the court of appeals said.

The emails were found to have violated ethics rules against bias or prejudice in a professional capacity, based on race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status. And the court said, “Markey’s and Hancock’s misconduct clearly had the potential to undermine the work of the board and the public’s confidence in that work, as well as damage the public’s perception of the legal profession, the board, the department, and the federal government at large.”

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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).

Late last week, the excellent BarExamTracker Twitter account posted an ominous warning about shady tactics that some fierce defenders of the broken status quo might deploy against law school graduates seeking a diploma privilege option to avoid taking an in-person exam in the middle of a global pandemic.

Or, perhaps, it’s more fair to say “American” since most of the rest of the globe seems to be getting a handle on this crisis while the United States digs in and just embraces that things are going to get much worse.

When I first saw this, I appreciated the concern but refused to believe that anyone in a position of authority would really stoop to something like that. Advocating for diploma privilege is an exercise of free speech and a sign of genuine professional engagement, not a series of embezzlement convictions.

But it turns out, I’d been giving the powers-that-be far too much credit because they had already embarked down the road of intimidating critics with C&F threats.

A recent law school grad who I won’t name because of the threatening atmosphere posted a response sent to the entire graduating class from her law school:

That… certainly sounds like a threat.

It also lends oxygen to the pernicious worldview that criticizing those in power amounts to “cyberbullying.” It’s as close to bullying as the toughest kid on the playground complaining that he cut his hand bashing your face. When someone signs up to a position of responsibility, they’ve signed up to face criticism and they don’t get to whine when someone questions their decisions.

Frankly, it’s shameful that anyone involved in the profession would even consider such a move and the law school’s proper response to the suggestion should not be to counsel quiet but to evoke its considerable clout to offer pro bono representation of any student who thought they were a victim of retaliation for voicing legitimate criticism.

But it’s 2020 and I’m getting used to feeling let down by the profession.

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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.

In recent months, the whispers have grown, in number and in volume. That the grand old man of investing, the Oracle of Omaha, had lost a step or two, to say nothing of nearly $20 billion. That his Midas touch had abandoned him, that his tried-and-true method was faltering, that he no longer had such ready access to the gods of capitalism whose favor he has enjoyed for nigh on seven decades. Even his closest acolytes and admirers have found themselves stumped by his inaction, and lost faith, while those who remain defenders of the One Truth Path were sounding, well, a little defensive. What, indeed, was wrong with Warren Buffett? Why was he afraid to make The Big Deal and show everyone that, even as he approaches 90, he still knows exactly what he’s doing? Was he depressed? Paralyzed by indecision? At last ready to let the world pass him by?

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

According to data recently released by the U.S. government, which Biglaw firms received paycheck protection program (PPP) loans from the Small Business Administration?

Hint: More than a dozen Am Law 200 firms received between $5 and $10 million loans from the government during the coronavirus crisis, and a few are well-known as some of highest-grossing firms in the country.

See the answer on the next page.

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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.

COVID-19 keeps on messing up… everything. And with a whole mess of states not even close to controlling the outbreak, well, it isn’t going to end any time soon.

In normal times, the Biglaw year has a certain rhythm to it. The Summer Associates start in June, on-campus recruitment starts in August, the class of new associates begin in September/October after they’ve taken the July bar exam… but the coronavirus has thrown a wrench into all of this. Sumer programs — to the extend they’re happening — have been thrown into chaos, and are mostly happening online. My colleague Joe Patrice has made a veritable cottage industry out of writing about how various states are changing (or not, yikes) the bar exam to deal with this new reality.

Now we’re focusing on when Biglaw firms will welcome their newest class of associates. Since firms are taking distinct approaches, it’s appropriate to start a chart to track exactly which firms are doing what.

As always, our vast network of tipsters is part of what makes Above the Law thrive. If you have any additional information about new associate start dates, please let us know. We’ll be updating this chart daily. You can email us or text us (646-820-8477).

Firm Name	Start Date	Notes
Baker Botts	2021
Baker McKenzie	January 25, 2021
Benesch Friedlander	February 2021
Clark Hill	January 2021
Cleary	January 2021	The firm will increase the salary advance from $10,000 to $20,000.
Cravath	October and November 2020
Debevoise	September 21 or October 19, 2020	Associates in the NY office are not expected to go to the office immediately, but are expected to work from a quiet location from at least 8:45 am to 7:00 pm during orientation.
Dickinson Wright	January 2021
Eversheds Sutherland	January 2021
Foley & Lardner	February 1, 2021	The firm will offer a second salary advance of $10,000 to be distributed in October.
Fox Rothschild	January 2021
Hogan Lovells	January 2021	Additional stipend of $25,000 to deferred associates.
Mayer Brown	January 2021
Milbank	October 12, 2020 and a date in January 2021	Associate option on start date. Associates do not have to arrange housing near office at this time. Notice will be provided before new associates are required to be physically in the office.
Nixon Peabody	February 2021	Deferred fall associates will receive a $10,000 salary advance.
Reed Smith	January 2021	Associates “will receive a stipend for the Fall 2020, paid bar exam and study costs as planned, and will receive health insurance beginning in September 2020.”
Seyfarth Shaw	January 2021
Simpson Thacher	Mid-late January 2021	Contingent on associates taking the bar exam. Associates may received up to a $20,000 salary advance.
Squire Patton Boggs	January 2021
Troutman Pepper	January 2021	The firm “will provide our entry-level associate class with financial assistance to help defray living expenses and costs associated with taking and studying for the bar exam this fall, as well as the ability to enroll in the firm’s health insurance plan.”
Vedder Price	January 2021

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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).

If Alan Dershowitz were your grandfather, you’d at least take away his phone.

Most of the men accused of having sex with underage girls provided by Jeffery Epstein have issued terse denials and refused further comment. Even Prince Andrew slunk off in silent ignominy after that disastrous interview where he claimed to be unable to sweat due to “what I would describe as an overdose of adrenaline during the Falklands.”

No such dignified silence for the 81-year-old Alan Dershowitz, who was part of the legal team that negotiated Epstein’s slap-on-the-wrist 2008 plea deal in Florida. Through hundreds of media appearances, Dershowitz has attempted to clear his name by describing his “perfect, perfect sex life” and insisting that, although he did get a massage at Jeffrey Epstein’s house “from a woman in her 40s. I think her name was Olga,” it was totally fine because “I kept my underwear on during the massage.”

He’s given countless disastrous interviews trying to establish his whereabouts twenty years ago from flight manifests.

Who is this tweet responding to? Dunno, but whoever it is better stop lying!

The old man yelling at clouds has even written a book about poor, innocent men in the #MeToo era.

Get your copy now, it’s free!

Dersh has had a lot of time on his hands recently, what with being unable to go to his favorite nude beach because of COVID. Did he have time to chat about his unfortunate clothed summer with reporters? You bet he did. Did you need that visual? No you did not!

In his free time, Dershowitz has sued one of his accusers for defamation, waged a flame war against David Boies, and just last week tried to sic law enforcement on Miami Herald reporter Julie Brown for the dastardly crime of reporting in the first degree.

Read all about it in Dersh’s book. Did he mention it’s FREE?

When news of the arrest of Epstein’s alleged procurer Ghislaine Maxwell broke this week, Dershowitz rushed to link his name to hers in the press.

In a Spectator piece entitled “The Ghislaine Maxwell I Know,” he described a long acquaintance with the person accused by multiple women of trawling schoolyards for girls to feed Epstein’s habits, participating in sexual abuse of minors herself, and threatening them if they talked.

Dershowitz defends Maxwell by attacking the credibility of the two accusers who named him personally. No doubt she appreciates the attention, not to mention the free legal advice.

“In addition to presenting factual defenses, Maxwell’s lawyers may argue that the Statute of Limitations have expired on these 20-plus year allegations,” Dershowitz advised, adopting the president’s singular capitalization rules. “They may also argue that Maxwell is protected by Epstein’s original plea deal that expressly included Maxwell as someone who received immunity.”

“Only after a full trial, in which both sides are presented should reasonable people come to conclusions about Ghislaine Maxwell,” he concluded, before heading to Twitter to express his fervent wish that there were videotapes of young women being serially assaulted by Epstein and his friends.

“Reasonable people” would shut the hell up about now. But Dersh … is not reasonable people.

The Ghislaine Maxwell I know [Spectator]

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Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

Seven years ago, Daniel Snyder said that he would never change the name of the Washington D.C. National Football League team that he owns. In fact, he was so stern in his position that he told a reporter that caps could be used attached to the word “never.” Yet, the franchise has recently confirmed that it is conducting a thorough review of the team’s name and the press release makes it clear that Snyder is backtracking from his prior statement.

Assuming the Washington D.C.-based team removes the “Redskins” name and mascot, what should be the substitute? One offshore sportsbook has made “Redtails” the favorite, ahead of “Presidents,” “Generals,” and “Memorials.” Interestingly, there is an application to register the “Washington Redtails” pending with the United States Patent and Trademark Office, and PRO-FOOTBALL, Inc. (the owner of the Washington Redskins trademark registrations) is not the applicant.

On February 22, Deron Hogans and Thaniel Van Amerongen, employees at Deloitte and residents of Maryland and Virginia, respectively, jointly filed an application to register the “Washington Redtails” trademark in association with the licensing of intellectual property rights. It was published for opposition on June 23, which is typically one of the last steps in the process prior to receipt of a registration certificate.

No oppositions have been filed against the “Washington Redtails” application; however, the period to oppose or seek an extension to oppose registration of the application does not expire until July 23. Thus, it is possible that the pending application is opposed. If it is not opposed, then PRO-FOOTBALL, Inc. may be beating itself up should it ultimately choose to rebrand from the Redskins name to the Redtails.

Yet, even if Hogans and Van Amerongen get past the publication stage of the trademark registration process, they will still be required to convert their intent-to-use filing to an actual use filing by way of submitting an appropriate statement of use that demonstrates use of the “Washington Redtails” mark in a commercial manner and in conjunction with the licensing of intellectual property rights. Typically this would be demonstrated by way of submitting advertising and marketing materials.

The application appears to be nothing more than a shrewd attempt by a duo to potentially make some money from PRO-FOOTBALL, Inc. should it receive the registration and should the Washington D.C. NFL team be so interested in the name that it is willing to purchase it instead of go through the process of trying to revoke the registration. However, the examining attorney appointed to the file may realize that this application likely does not fall within the scope of what should receive registration in connection with a company or individuals in the business of licensing intellectual property rights. Examples of registrations that make sense in this space are “QUALCOMM,” which is used for licensing its own chip technology and “ASCAP,” which is used in conjunction with licensing music of others.

However, if PRO-FOOTBALL, Inc. decided to file an application to register the trademark for “Washington Redtails” today, it would likely be met with a suspension notice while the application filed by Hogans and Van Amerongen remains pending. It pays to be proactive in seeking trademark registrations, even if you firmly believe you will NEVER need to rebrand.

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Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

I believe this recession will be looked back upon and known as the bursting of the bullshit bubble. All the things that we say we needed, must do, and have no choices about turned out to be bullshit. And, there is no looking back.

— Legal industry advisor Darryl Cross, head of Rainmaker Fitness and HighPer Teams, commenting on the fact that the way the pandemic forced the legal industry to shift to successful remote work environments has enlightened the powers that be as to the wonders of virtual meetings and the “bullshit” that is facetime.

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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.

In a rational world, states would cancel the July administration of the bar exam so applicants could comply with basic public health advice and avoid a large, extended gathering in an enclosed space. The more committed states are to the keeping contact down now, the fewer cases we’ll have later.

Arkansas has taken a different lesson. Piggybacking off of research designed to warn Arkansans that the disease will likely spike if they don’t take steps today to halt the spread, the Arkansas bar examiners took exactly the opposite lesson and decided, “Well, we need to have the July bar exam, because things could be way worse later!”

The Board recognizes and is concerned that racial minorities are at a greater risk of COVID19 infection, hospitalization or death than white Arkansans. Health experts, however, seem to agree that the number of COVID19 cases will continue to escalate dramatically through October. In a University of Arkansas for Medical Sciences report dated June 12, 2020 and entitled “Weekly COVID-19 Trends in Arkansas,” the prediction for the number of positive cases for the end of June 2020 was 15,000. As of Monday, June 29, 2020, Arkansas’ number of positive cases was even higher, reaching 20,257.

UAMS predicts that the positive cases will peak in late September or early October. The Mean-Case Estimate is 133,056 and the Worst-Case Estimate is 251,834. Based on the UAMS estimates, the Board is of the opinion that it would be far more dangerous for anyone to be in a large group in late September or early October than July.

“To avoid the risk of disease spread, we must run our superspreader event early!” is a sobering message from the people supposedly protecting the public from stupid lawyers. Also, the letter was framed by a request from the ACLU to consider the racial dimensions of this decision, which the letter acknowledged before promptly waving the issue away with a vague “If there are additional ideas that you or others may have to help address these issues, we are more than interested in hearing them” request? It seems as if the only additional idea worth mentioning would be “not running the stupid test” and yet it seems to be the only one they aren’t considering right now.

In the exceptionally limited defense of the bar examiners, the bar exam will not be the only reason the state lurches toward catastrophe. Daily new cases are on the rise right now. Without the July bar exam there will still be a massive outbreak that only grows over time. But the argument “well, it could be worse” isn’t particularly compelling. If September and October are going to be deadly, you can ALSO cancel those in-person exams. There’s nothing but a noxious mix of laziness and stubbornness making this an “either-or” equation.

It also completely misses the point. It’s the systematic failure of anyone in Arkansas to take the lead that’s putting people in this situation. Just because the governor is too committed to passing the political buck to take direct action doesn’t mean everyone should just shrug their shoulders and accept their fate. Half the state may refuse to wear masks when they march on Little Rock to demand more Confederate statues, but that doesn’t mean THE BAR EXAM has to run its own superspreader event. If everyone just did the right things that they could control it would be better than doing nothing.

This is the mentality that heard about toilet paper shortages and said, “Well then everyone should rush to the store to buy more toilet paper.” And it’s holding the legal profession hostage.

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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.