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In February 2020, Jessica Sobhraj, the CEO of Cosynd, celebrated along with 125 of her friends, customers, and advisors. She had become the first CEO to secure an investment from We Ventures, New York City’s $30 million venture fund for diverse entrepreneurs in partnership with NYCEDC and women.nyc. She created Cosynd to be the fastest and most affordable way for content creators to protect themselves and their copyrights.

By March 2020, due to COVID-19, Sobhraj’s funding, along with the plans of so many small businesses, was put on pause. For guidance, she turned to her advisory board. “The role of an advisory board,” Sobhraj explained, “is to be willing to help in the toughest of times. They’re the brains and hands ready in the forefront.” Together, the Cosynd team and its board decided to expedite a new product launch, which has kept the company on track and ensured that all employees maintained their jobs.

This isn’t the first time Sobhraj credits her board for adding value. In fact, before Cosynd’s business model was solidified, and even before her team wrote a single line of code, she spent a year and a half assembling her advisory board to help Cosynd scale, fill knowledge gaps, and serve as “sanity checkers” ensuring the team keeps true to its core mission. Sobhraj made sure that Cosynd’s advisory board contained three categories of professionals: 1) those with expertise in intellectual property (her industry); 2) those with experience building and creating content-focused companies (her customer); and 3) those with deep knowledge of raising capital. To pitch the roles, she outlined the proposed time commitment and offered compensation in the form of equity in the company.

The Cosynd founding team, which is 80% female, 60% minority, and 20% veteran, values diversity. Of Cosynd’s 15 advisors, five are lawyers, four have technology backgrounds, 11 are women, three are minorities, and eight are over 40 (three are over 50).

Sobhraj sees her diverse advisory board foundation as integral to success. When asked for her most important piece of advice for women building a company, she recommends that they surround themselves with an incredible board of advisers from the onset. Growing a successful business is a team sport. Early-stage founders benefit from utilizing a collection of aligned experts who are committed to a company’s long-term prosperity and who can assist in navigating complexities and mitigating potential pitfalls.

Advisory Boards Vs. Boards Of Directors

An advisory board, which is sometimes known as a council, is a collection of experts responsible for guiding a founder, CEO, or company representatives. Building out an early advisory board may ensure the presence of independent advisors, which can provide strategic advantage and insulation from overreaching investors down the road. Not to be confused with an employee or a vendor, who may work on a specific project, provide deliverables, or complete day-to-day tasks, each advisory board member brings specialized knowledge focused on company strategy and success. Members attend an agreed upon cadence of advisory calls and meetings. Although an advisory board member does not traditionally have a fiduciary duty, compensation, often in the form of equity in the company, is likely for the role.

A company may begin with an advisory board before creating a board of directors, the governing body of a company. An advisory board role may evolve with the company into a position on the company’s board of directors. The directors generally advise across disciplines and aim for the company’s long-term returns. Board of directors members attend meetings, are provided with regular updates, and, as opposed to advisory board members, have fiduciary duties, abide by laws and regulations, and are more likely to be compensated in cash as well as in equity for their efforts.

In the past few years, the importance of having a diverse board of directors has received widespread media coverage. For example, a California 2018 law mandates the number of women on a board of public companies with an executive base in California. In January 2020, Goldman Sachs announced an initiative that they will not take a company public unless it has at least one “diverse” board member.

We now concretely know that diversity is not philanthropy; it’s good for business. A March 2018 study by the financial planning firm MSCI found that having a more diverse workforce and board of directors leads to greater diversity of ideas. MSCI also found that companies with three or more women on a board of directors saw a median productivity 1.2 percentage points above those in their respective industries and performed better financially. This would stand to reason for advisory boards as well.

Choosing An Advisory Board

For a startup, family business, midsize, or small company looking to scale, here are four tips to starting and growing an advisory board:

1) Commit To Building And Maintaining An Advisory Board

Your company deserves a qualified team that is dedicated to you, your vision, and your company’s long-term prosperity. The earlier you build it, the earlier you can benefit from expert guidance. Quiet the voices of doubt that may demand perfection before approaching people or suggest that you are an imposter and not worthy of a board. Commit to searching for and choosing the right advisors, providing them with regular company updates, and growing your company together.

2) Brainstorm Specific Needs

Generally, each advisory board member will bring a mix of excellent communication skills, strategic planning aptitude, industry and business expertise, a strong network, and credibility. A member must also be aligned with the company’s vision, values, and goals, while also being willing to challenge assumptions. Ideally, each person will bring a unique background and offer specific and tangible expertise evidenced by their work history. A board should not be a homogenous collection of VCs or ex-CEOs.

To prioritize your company’s immediate needs, use growth plans to identify any senior leadership knowledge gaps to specify the ideal advisor’s skill set. Determine the time commitment for the role and if feasible and appropriate, compensation. Those attributes may guide an advisory role description:

• The relevant industry (and adjacent industry), subject matter, or skill set;
• Similar roles or projects that demonstrate skills;
• Appropriate relationships and networks; and
• Game-changing introductions to a person or company.

3) Pitch And Be Pitched

Once a target is identified, it’s possible to point an arrow. To find one, reach out to a current network of colleagues and describe your advisory board needs. If you approach people who are unfamiliar with your company, drive interest and excitement via your company’s elevator pitch or product narrative. Convince them of your passion for your mission, value proposition, projected growth, and other relevant business metrics.

Before committing, you may want to test the relationship through discussions or a limited project. The goal is to ensure that an advisory board member is culturally aligned with your team and goals. You are building what will hopefully be a genuine, mutually beneficial, and long-term relationship for both parties.

4) Re-evaluate As Necessary

Like companies and relationships, advisory board member duties may evolve over time. Open communication will ensure that expectations are aligned. The goal is to thrive, not to simply survive.

Just as many small businesses are struggling post-COVID, many talented professionals and seasoned executives are finding themselves furloughed or with extra time on their hands. According to Sobhraj, now may be an opportune time to invest in cultivating advisory relationships as “there are so many people with deep expertise sitting at home, wanting to add value via virtual meetings. Once we enter a new normal, there will be a mass movement for investors to re-energize their business and support founders, like me, to help us get back on our feet.” As the proverb states, “If you want to go fast, go alone. If you want to go far, go together.”

Sarah was the General Counsel / first Lawyer at Etsy and Vroom.  She’s a co-founder of The Fourth Floor, a creator and producer of Legal Madness, an NYU Law School Engelberg Center fellow, a board member, an investor, and a speaker. You can also find Sarah hammering silver, eating candy, and chasing her child. sarahfeingold.com.

Federal clerkships are a stepping stone to an elite legal career, but the ranks of federal clerks still remain fairly homogenous.

In this week’s episode of The Jabot, I speak with folks dedicated with diversifying clerkships: Danielle Barondess, a federal law clerk in Hawaii, and Steven Arango, a federal law clerk in Texas, who founded a new program, Law Clerks for Diversity. The organization’s mission is clear — they want more diverse candidates to be able to successfully navigate the clerkship application process:

There are hundreds of law students and lawyers from diverse backgrounds who would make phenomenal federal law clerks, but they do not know how to navigate the process, who to connect with, or how to make their applications stand out. The black-box nature of clerkships and the mindset that clerkships are “exclusive-province” must change. That is where Law Clerks for Diversity comes in. Our vision is to increase the diversity of federal clerks by helping diverse applicants navigate the process and find the right opportunities to maximize their potential to land a clerkship.

We chat about developing this mission, why focusing on federal clerkships is important, what the program entails, and how folks can get involved (spoiler alert: here).

The Jabot podcast is an offshoot of the Above the Law brand focused on the challenges women, people of color, LGBTQIA, and other diverse populations face in the legal industry. Our name comes from none other than the Notorious Ruth Bader Ginsburg and the jabot (decorative collar) she wears when delivering dissents from the bench. It’s a reminder that even when we aren’t winning, we’re still a powerful force to be reckoned with.

Happy listening!

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).

* Novartis has settled a lawsuit which included allegations that the drugmaker gave money to doctors to induce them into prescribing certain medications. These claims would have spiced up the movie Love and Other Drugs… [NBC News]

* An Ohio attorney has been arrested on federal bribery and extortion charges. [Toledo Blade]

* Only seven law firm mergers and combinations have occurred during the second quarter of 2020 according to Altman Weil, likely due to the chilling effects of the ongoing COVID-19 pandemic. [The American Lawyer]

* The New York Attorney General has agreed to settle sexual misconduct lawsuits against Harvey Weinstein for $19 million. [Guardian]

* A lawyer has lost his bid to avoid the bankruptcy discharge of his $156,000 in legal fees for handling a client’s divorce. [Massachusetts Lawyers Weekly]

* A former judge and lawyer has been suspended from practice for participating in an inappropriate email chain nicknamed the “forum for hate.” Be sure to check out the messed up things that were said by the group which are included in the article. [ABA Journal]

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.

In this week’s episode of the Lawyer Forward podcast, Mike Whelan talks about race, both in America generally and the legal system specifically. He uses the story of Italian-American internment in World War II to explore the idea of “otherness.” Out of preferences and perceptions, as well as a history of identifying white culture with professionalism, the legal industry has created a context that’s hostile to African Americans. Resolving that distance will only come after first owning our ugly history.

Make sure you take advantage of the show’s Q&A feature. You can ask Mike questions about the latest episode and he’ll answer at the end of the next episode. Just submit your question in the form at the bottom of this post.

Earlier this month, a couple filed suit against a fertility clinic in New York. They claimed negligence, fraud, intentional inflection of emotional distress, and negligent infliction of emotional distress. The complaint tells a story of an especially rough road of fertility treatments. Before their family was complete, the couple, Christopher and Nicole Mooney, went through 13 egg retrievals and 15 embryo transfer procedures. That is a lot!

The couple seeks damages from the clinic and its doctors for, among other things:

• Transferring a different embryo than intended (instead of a healthy “normal” one, an embryo that had been designated with a “special consideration” status was used).
• “Losing” an embryo for a year and half (the healthy embryo they thought had already been transferred showed up for transfer 18.5 months later).
• Transferring a different number of embryos than they were told (they were told two, but medical records showed only one).
• Prescribing medications to Nicole in amounts inconsistent with medical norms (twice the dosage!).
• Prescribing medications to their gestational carrier for a time period inconsistent with medical norms (only 7 days, versus the usual month-ish).

The clinic, New York Fertility Institute, denies the couple’s allegations, stating they were surprised by the lawsuit, never lost the couple’s embryos, and never transferred the wrong number of embryos. Sounds like some pretty fundamental factual issues in the case!

What Does The Expert Say?

Colleen Quinn is a Virginia attorney with a strong assisted reproductive technology (ART) law practice and litigation practice — a unique combination, and one well-fitted for the new rising tide of ART litigation. Quinn explained that “embryos are actually pretty easy to lose or mis-identify when clinics do not maintain careful record keeping and accountability.” She described how embryos are stored in tiny little straws “as small as a sewing needle” and each straw has to include identifying information. That does sound tough — and open to human error. And clearly those of us who can’t find our keys most days should steer clear of a profession in embryology.

Making The Grade

Quinn further explained that embryos are typically graded on their level of viability. However, not all grading is the same, depending on the clinic, or even the person doing the grading. Some may be viable and some may not be viable — or some may even be semi-viable. How they are marked in such teeny-tiny space in the cryogenically preserved minuscule straw, versus what is placed on paper, requires attention to detail and meticulous record-keeping. But in this context, attention to detail and meticulous record-keeping should be the bare minimum features of the standard of care, when each and every embryo, and the viability or “grading” of each, is essential to the patients who have paid so much for the creation of each and every embryo — as well as the hope that the patient has for each embryo to be their future child.

Quinn believes that patients should have access to information as to the exact status of each of their embryos and their viability. How it was graded, where and how it was kept, whether it was kept in the same vessel or straw as other embryos and if so, which ones, as well as which ones were thawed and discarded, and ultimately, which ones were transferred to the patient’s or gestational carrier’s uterus. “As both a litigator and ART attorney, I am seeing more and more of these lost or misplaced or mislabeled embryo cases. This could be avoided with better and more careful record-keeping. I know most reputable clinics and fertility doctors do their absolute best — however, we are talking about super tiny, yet mega-valuable material — that has been created at both a high financial and emotional cost!”

Embryo Transportation

Although the Mooney case does not involve the transportation of embryos from one clinic to the other, Quinn notes that this is a point in the process especially vulnerable and ripe for litigation. When embryos are transported to another clinic, the record-keeping of what got sent and what got received is critical. “I have seen so many mishaps in the transportation and accounting process.”

Time For (More) Regulation

The Mooneys and their attorney have stated that the purpose of the lawsuit is not just to obtain monetary damages, but also, at least in part, to encourage greater regulation of fertility clinics. Of course, greater regulation often means greater cost, and fertility treatment is already prohibitively expensive for many. But given the devastation and heartbreak caused by missing embryo and mixed-up embryo cases in the United States, it does seem appropriate that there be strict record-keeping requirements. The alternative, for some clinics, will be more lawsuits like the Mooneys. And that just means going to court when tragic losses happens, as opposed to preventing them in the first place.

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.

If America’s police want to improve their public image, they should immediately hire the social media person for the Clayton County Georgia Sheriff’s Department. This anonymous hero’s post, entitled “Ku Klux Klan Paraphernalia Found At Suspected Meth House Busted By The Elite COBRA Unit. SHERIFF VICTOR HILL,” is a tour de force. You’ll laugh, you’ll cry, you’ll laugh so hard you cry and forget that we’re only halfway through the endless hell that is 2020.

It starts out slow.

When Sesame Street wrote the famous song “Who Are The People In Your Neighborhood”, it depicted the interesting people from all walks of life and professions that you could possibly meet in or near your subdivision.  The song ends happily saying “they”re the people that you meet, when you’re walking down the street, their [sic] the people that you meet each day”.  Sesame Street probably never imagine or thought about the type of people in the neighborhood that Sheriff’s Deputies removed from the Bonanza subdivision yesterday when they wrote this wonderful song.

“But what does Sesame Street have to do with Klan hoods and meth,” you are asking, as you hum the tune destined to haunt your every waking hour for a week at least.

Last night, members of Sheriff Victor Hill’s elite COBRA Unit executed a search warrant for a suspected meth house on Sanderling Ln in Jonesboro Ga.  COBRA quickly surrounded the location and called out suspect Eric Spencer who realizing there was no where for him to escape, wisely came out surrendering with his hands up.

While searching Inside the house and backyard, approximately 6-7 ounces of Methamphetamine was located along with scales and baggies for sale purposes . A small amount of marijuana along with a hand gun was also located. Spencer who has no job was in possession of approximately 4-5 thousand dollars in drug money.

Presumably COBRA stands for “Chemical, Ordinance, Biological, and Radiological,” not the “Consolidated Omnibus Budget Reconciliation Act of 1985,” or the “Combined Old Boys Rugby Association,” or Karate Kid villain Cobra Kai. In any case, good job coming out with your hands up, Mr. Spencer!

Sheriff’s Deputies also found something else that was disturbing to say the least.  Down the main hallway of the residence shadow boxed and encased within the wall for display was a original klansman suit approximately 60 to 70 years old.

Well, that took a turn. Helpfully the Sheriff’s Department included a photo.

Image via Clayton County Sheriff’s Office

Yikes! You have to be serious about your bigotry to have a whole glassed-in display of your terror robe and swords. Did the neighbors have any inkling that Mr. Spencer had more than a passing interest in racist oppression?

Turns out, they did!

Long time neighbors stated they found it a little extreme when on Halloween they would see nooses hanging in the front yard, but they never imagined where the idea probably originated from.

Yes, who could imagine that a person who hangs nooses in his front yard harbors racist sentiments? So very unexpected! But never fear, it all worked out in the end.

The person “in the neighborhood” is now facing the wall at Georgia’s toughest para-military jail better known to the world as “The Hill-ton”.

What exactly is a para-military jail? That’s not entirely clear. But if your kid gets suspended from school, you can sign him over to Sheriff Hill to “spend the days of suspension at the Sheriff’s Office instead of staying home unsupervised. This is a day of hard labor washing patrol vehicles, cleaning bathrooms, and eating punishment jail food.”

Sheriff Hill also appears to have some legal troubles of his own. But if anything should happen to him, the Office will be safe in the wise hands of whoever handles their social media.

They’re the people that you meet, when you’re walking down the street.  They’re the people that you meet each day.

Ku Klux Klan Paraphernalia Found At Suspected Meth House Busted By The Elite COBRA Unit. SHERIFF VICTOR HILL [via Nixle]

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

Is anyone else freaking out about the fact that half of the year is over? While we would all like to see 2020 in our rearview mirrors, we are only halfway there. The legal world still spins.

The Washington State Supreme Court has decided to ditch its pilot program of limited license legal technicians. Although the program was initiated in 2013 to provide access to justice in family law matters, this noble experiment has bit the dust. The court found that the juice was not worth the squeeze, given the program costs and the small number of “interested individuals.” The program will sunset next year.

The court’s decision was not unanimous. Justice Barbara Madsen wrote a scathing dissent, stating that the court’s decision ended a “completely viable licensing category that the public can draw on.” Not done, she made it clear that courts have an obligation to end racial disparity and that the court’s sua sponte decision to end the project, an effort to address access to justice in race and income, was a step backward.

Is the court’s decision an example of not walking the walk? What about the fate of other, similar projects across the country? What does this decision mean for California, which is taking its first tentative baby steps toward a similar project? To be determined.

Remember the furor several years ago when a judge in Northern California sentenced a young male defendant to a six-month sentence for sexual assault? Outraged county voters recalled Judge Aaron Persky in June 2018. Judges should be free to decide without fear or favor, which was what he did and with which the citizenry disagreed.

The Canon of Judicial Ethics precluded Persky from defending his sentencing as judges have long been prohibited from speaking publicly about pending cases. After Persky’s recall, the California Supreme Court solicited public comment as to whether judges should be able to comment upon pending cases if they are criticized about their decision in a case and they are up for re-election or recall. Given the proliferation of social media and the increasing level of vitriol in public forums, incumbent judges have had no way to defend themselves, and bar associations, which have tried to play a part in defending judges, have had little to no impact. Who cares what bar associations think? Precisely.

So, effective today, the California Code of Judicial Ethics has been amended to provide, among other things, that judges can speak publicly about a pending case if they are criticized for a ruling during a recall or re-election campaign but only if the public comment would not reasonably be expected to affect the outcome or impair the proceeding’s fairness. Would that have made a difference in the outcome of Persky’s recall? Your thoughts?

To appear or not to appear? That is the question (sorry, Hamlet). It’s the question troubling lawyers these days as they decide whether to go to court to argue a motion of one sort or another. The Italian American Bar Association here in Los Angeles recently had a Zoom presentation with both the presiding judge and assistant presiding judge of the Los Angeles Superior Court.

While neither of them would come right out and say so, my sense is that they would much prefer that attorneys appear remotely.

We all grew up as lawyers being told that appearing in person was critical. The court would see you; you would see the court and whether the judge was frowning, smiling, smirking, or eyes glazing over while you argued. If you decide to go to court these days, the only thing to be seen will be the eyes, as being masked in court is mandated, at least here in Los Angeles County. So, how much body language do you glean from eyes only? What if the court doesn’t make eye contact and is reading a file (not necessarily yours)? What’s the message?

We were also told that if we didn’t physically appear and just submit it on the pleadings filed in the case that showed we didn’t really care about the outcome (au contraire), and thus we forfeited our chance to make the compelling argument that wins the motion. How many times have we all heard “Counsel, do you have anything to add that is not in the papers?” Gulp.

Times sure have changed from those days. The angst that lawyers feel about what to do is perfectly understandable: what will the client think if you don’t appear in person? What will the court think? Will opposing counsel think that she has you on the ropes? Both the presiding judge and the assistant presiding judge made it clear that the number of times in which they changed their tentatives was negligible compared to the number of motions that they have heard on the bench. Do you pick up any clues here?

How about this clue? In its most recent news release, the court said its “remote technology options promote social distancing by reducing the number of people appearing in person.”

Consider how high the stakes are in looking at making the physical courtroom appearance: the ruling on the issue as it affects the case, your health, your client’s health, and the safety and well-being of the court and staff. High-stakes decision or low? Not an easy call.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

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