Stock Exchanges Don’t Have To Do Thing They Very Much Don’t Want To At Their Own Expense

The COVID Law Firm Reopening Tracker: How Is Your Firm Going Back To Work?

The COVID-19 pandemic impacted virtually every facet of life. The times we live in are now uncertain, and nothing will ever be the same as it was before. Lawyers and legal professionals have been cloistered inside their homes for months, and states across the country are now slowly but surely reopening their economies and lifting their shelter-in-place guidance.

With all this taking place, major law firms — many fresh off managing their expenses by using cost-cutting maneuvers like salary cuts, benefits reductions, furloughs, and layoffs — have been weighing their plans to get their employees back into the office.

Just as we’ve done in the past when it comes to raises, bonuses, and austerity measures, we are compiling a table of all the firms that have announced reopening guidelines in these strange times. We want you to see exactly how the legal profession is dealing with this new phase of the coronavirus crisis.

Help us help you. Let us know what your firm is doing to protect employees and adjust to the new normal during this unprecedented moment in time.

As a little reminder, we love covering law firm news, but we need your help. As soon as you find out about reopening plans at your firm, please email us (subject line: “[Firm Name] COVID Reopening”). We always keep our sources on stories anonymous. There’s no need to send a memo (if one exists) using your firm email account; your personal email account is fine. If a memo has been circulated, please be sure to include it as proof; we like to post complete memos as a service to our readers. You can take a photo of the memo and attach as a picture if you are worried about metadata in a PDF or Word file.


Staci ZaretskyStaci 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.

DACA Opinion Confirms Supreme Court’s Cowardly Refusal To Acknowledge Donald Trump

(Photo by Jabin Botsford – Pool/Getty Images)

“Pay no attention to that man behind the curtain!” barked Oz the Great and Powerful. It’s an admonishment that Chief Justice John Roberts might as well have footnoted in today’s DHS v. Regents opinion. A 5-4 majority of the Supreme Court held that the lawsuits challenging the White House decision to end the Deferred Action for Childhood Arrivals (DACA) policy could go forward, plaintiffs having successfully pleaded that the administration’s reversal could amount to a violation of the Administrative Procedures Act.

But the Court also released an 8-1 opinion today, with all but Justice Sotomayor glibly dismissing the Equal Protection claims brought by the plaintiffs in these cases. Given the posture of these cases, the simple question was “is there a possibility that DACA was killed based on Trump’s animus toward the Latinx community?” To this question, the majority responded: “New phone, who Trump?”

Much like the Bostock opinion earlier this week, the positive result obscures the problematic path taken by the majority. This opinion provides concrete relief to the hundreds of thousands of people impacted by the government’s policy deferring deportations of folks who came here as children. But, as Mark Joseph Stern pointed out two years ago, this is a policy reversal that could have easily been approved if the government had handled the process correctly.

To revoke DACA, Sessions need only put forth a clear statement explaining the constitutional, statutory, and policy justifications for discontinuing the program.

Instead, the attorney general issued a garbled one-page memo with minimal analysis. First, he suggested that DACA lacked “proper statutory authority.” Yet in 2014, the Office of Legal Counsel issued an opinion finding that DACA did have this statutory authority. Trump’s OLC could have reversed this finding, but it did not, and Sessions failed to explain why he’d ignore an opinion that remains on the books. This inconsistency undercut his claim, unsupported by any meaningful reasoning, that DACA had no statutory authorization.

Today’s majority opinion is limited to chiding the administration for not dotting its “i”s. It affirms that Jeff Sessions could declare DACA illegal but held that Homeland Security officials acted arbitrarily and capriciously in then pulling the plug:

The dissent is correct that DACA was rescinded because of the Attorney General’s illegality determination. See ante, at 20. But nothing about that determination fore- closed or even addressed the options of retaining forbearance or accommodating particular reliance interests. Acting Secretary Duke should have considered those matters but did not. That failure was arbitrary and capricious in violation of the APA.

But the door remains wide open for this or a future administration to try again from scratch. Which, on the one hand, makes sense. Future administrations shouldn’t necessarily be bound by old Executive Orders. On the other hand, that’s why it would’ve been a better decision to take an extra 10 seconds to allow the current plaintiffs to pursue their discrimination claims to short-circuit another round of pretextual tripe spewing from DHS and landing us right back where we started.

Instead, we got this:

Finally, the cited statements are unilluminating. The relevant actors were most directly Acting Secretary Duke and the Attorney General. As the Batalla Vidal court acknowledged, respondents did not “identif[y] statements by [either] that would give rise to an inference of discriminatory motive.” Instead, respondents contend that President Trump made critical statements about Latinos that evince discriminatory intent. But, even as interpreted by respondents, these statements—remote in time and made in unrelated contexts—do not qualify as “contemporary statements” probative of the decision at issue.

In other words, the majority opinion boils down to “Trump may have said he wanted to do this for discriminatory reasons but plaintiffs can’t say that the cabinet officials were actually listening to Trump when they did the thing Trump told them to do.”

Justice Sotomayor was completely alone in embracing reality.

But “nothing in our precedent supports [the] blinkered approach” of disregarding any of the campaign statements as remote in time from later-enacted policies. Nor did any of the statements arise in unrelated contexts. They bear on unlawful migration from Mexico—a keystone of President Trump’s campaign and a policy priority of his administration—and, according to respondents, were an animating force behind the rescission of DACA. Taken together, “the words of the President” help to “create the strong perception” that the rescission decision was “contaminated by impermissible discriminatory animus.” This perception provides respondents with grounds to litigate their equal protection claims further.

Translated into image form, here’s Justice Sotomayor responding to the majority’s claim that they don’t understand why any statements from the President indicating a racialized motive for ending DACA would matter.

Unfortunately, this is a position that Justice Sotomayor is getting accustomed to occupying. In the above passage, she cites repeatedly to her dissent in the Muslim Ban case, another matter where the majority waved away public statements from the nation’s chief executive as locker room talk that couldn’t plausibly be connected to the actions of Trump’s direct reports. Why would a cabinet department be Trump’s responsibility? If it weren’t so tragic, the Roberts assault on the premise of the unitary executive theory would be comical.

Supreme Court opinions are unique artifacts in American governance because they come packaged with a narrative account of both their reasoning and context. Yet when the history books are written of this wild tire fire of an era, the Supreme Court reporters will read as if everything was proceeding as normal. Elie Mystal said that this opinion suggests John Roberts isn’t scared of Donald Trump anymore. I think it betrays something else. This Court may be willing to hand Trump unfavorable results, but it will go to any lengths not to shield Trump from any responsibility. It’s always some technical error from some underling and never anything Trump said or did. If one is trying to read this result as a sign that Roberts is going to stick it to Trump on his tax returns, consider how much work he put into not memorializing every racist, “Build the Wall” comment Trump’s made over the years.

As an artifact of the times, Supreme Court opinions will stand out for their insistence on living in a bizarre cloistered bubble. “Sure there are a few administrative quibbles here and there but definitely not a sustained pattern of flagrant disregard for constitutional strictures! No indeedy!”

Again, pay no attention to that man behind the curtain.

(Full opinion on the next page….)

The “Judicial Resistance” Didn’t Save DACA [Slate]

Earlier: Neil Gorsuch Lays Landmines Throughout LGBTQ Discrimination Opinion


HeadshotJoe 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.

The 2020 Litigation Finance Survey Report

Since publishing our inaugural litigation finance survey in 2017, in partnership with Lake Whillans, each subsequent iteration has been a story of ever-increasing traction for the practice of third-party funding. Our 2020 findings continue this narrative, and show a marked increase in the scale and momentum of the field’s development and acceptance. Perhaps the most striking finding in this year’s survey was a nearly 30 percent year-to-year increase in the percentage of respondents reporting that they had firsthand experience with litigation finance.

Other findings include:

  • Lawyers in every single industry we examined saw a significant uptick (at least 10 percent) in firsthand experience with litigation finance.
  • Nearly 100 percent (99.36 percent) of respondents with firsthand experience with litigation finance agreed that they would use litigation finance again.
  • The proportion of respondents who would not consider litigation finance has plummeted since the 2019 survey.
  • Roughly three-quarters of our respondents stated that litigation finance has become more relevant to their practice in the last year.

We note that our survey data was collected before the COVID-19 crisis and the financial turmoil it has caused. These findings demonstrate that litigation finance is well poised to meet the challenges companies and law firms are now facing. Claim monetization, financing of claimholders, and capital for law firms are core offerings of a litigation financier like Lake Whillans, and are likely to become even more attractive solutions to many more companies and firms as we move through 2020 and beyond. We expect that next year’s survey results will show marked differences as litigation finance further penetrates every segment of the market driven by new necessities and creative problem solving.

Check out the full report on our survey findings here.

Are You Ready To Go Back To Your Biglaw Office?

New York City is set to enter Phase 2 of post-coronavirus reopening on Monday. Among the things set to open are playgrounds, patio seating, hair salons, and yes, Biglaw firms.

We know that there are a lot of potential issues with reopening waiting just around the corner. But with NYC so close to the next stage of reopening and so many firms with offices in the city, Above the Law wants to know how our readers are reacting to the prospect of returning to the office.

So vote in the poll below, and if you want to sound off about your firm’s reopening plan, you can email us or text us (646-820-8477).

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headshotKathryn 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).

Law School Graduates Push For Diploma Privilege As A Matter Of Racial Justice

(Image via Getty)

Let’s get something clear off the top. Here is the rank order of licensure options for 2020 ranked from best to worst:

1. Diploma Privilege (Utah, Washington)
2. Online July Exams (Indiana, Michigan)
3. Online Fall Exams (DC)
4. Delayed/Staggered In-Person Exams (New York, Massachusetts)
5. July In-Person Exams (a frighteningly non-zero list)
6. Injecting Yourself With Coronavirus To Own The Libs (Mississippi)

When we praise jurisdictions for staggering exams or going online, it’s worth remembering that these aren’t ideal solutions. We don’t really want a bunch of law grads sitting around until February to take the bar exam. But when the world is setting the bar at “sign this waiver in case you die taking our test,” a lot of stuff looks good by comparison.

It may be folly to complain that the pandemic is causing law grads pain and inconvenience — it’s, you know, a global pandemic so there are bigger issues at play than delaying your start date — but that doesn’t excuse heaping that pain disproportionately upon the least advantaged applicants. In a letter pushing the DC Bar to offer a faster path to licensing, Marvin McPherson makes this point:

The bar examiners delayed testing dates months after the posted testing date which increased financial costs to minorities and those who are socioeconomically disadvantaged disproportionately. Each month’s delay added to the probability that a socioeconomically disadvantaged graduate will not be able to study for the exam full-time and decreased their probability of successfully passing the bar exam.

While lenders could and absolutely should delay kicking off repayment schedules until at least next February to avoid dropping a hammer on grads who aren’t going to be able to start working in the autumn, that’s only part of the problem. Many grads are paying their rents on credit while studying and delayed exams are putting them in the position of going deeper into debt or starting work and trying to study on the side. And even though this would impact all applicants, incoming Biglaw associates are going to ultimately get stipends, economically advantaged folks can lean on savings and relatives, but it’s the folks without those perks who are going to end up suffering.

Now in Massachusetts, a state that flirted with an online exam already, a recent statement about the importance of addressing racial injustice in the wake of the George Floyd killing has become the jumping off point for a renewed call for action from recent graduates:

Your April 22nd letter setting out the Commonwealth’s 2020 bar exam plan acknowledges “reasonable concerns about the disparate impact of the bar on law graduates of color.” We implore you to consider that your solution to these “reasonable concerns” (a committee that will study possible alternatives to the bar examination “as soon as the emergency abates”) does not help the Black, Latinx, and Indigenous graduates most likely to be affected by the COVID-19 pandemic—an ongoing crisis unlikely to subside prior to the Massachusetts bar exam. We refer once more to your June 3rd statement: “This must be a time not just of reflection but of action.”

With that in mind, the letter asks the state to reconsider its earlier dismissal of a diploma privilege option. Specifically, the letter cites the Washington model where those seeking only local admission could move forward on their applications based on their law school diplomas while those who need the portability afforded by the UBE could still take the exam — which would be less crowded with a number of people opting for the diploma route.

This is becoming a question of common sense. There’s not a lot of good evidence that the bar exam protects the public. Honestly, the bar prep courses, covering a range of subjects that never showed up on the exam, are far more useful than the exam itself. If the bar prep industry transitioned to a state-sanctioned mandatory post-grad training module it would offer more value than insisting on the test.

I guess the best way to put this for bar examiners is: why aspire to having the fourth best solution?

Washington Grants Diploma Privilege To Graduates Of ABA Accredited Schools
With NCBE Quibbling Over Online Bar Exams, Massachusetts Says They’ll Just Write Their Own
Bar Exam Applicants Forced To Sign COVID Waiver In Case In-Person Exam Ends Up Killing Them


HeadshotJoe 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.

Supreme Court decision calls HHS’ reversal of LGBTQ protections into question – MedCity News

On Friday, the Department of Health and Human Services withdrew anti-discrimination provisions for LGBTQ patients. Three days later, a landmark Supreme Court decision called the policy change into question.

“It’s a bit of a whiplash. Friday sent a strong message from one branch of government and today sent the opposite message from another branch of government,” said Jennifer Kates, senior vice president and director of global HIV policy for the Kaiser Family Foundation. “Certainly, the decision (on Monday) changes the calculus from Friday completely.”

The 6-3 Supreme Court decision cemented LGBTQ workers’ protections under Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, religion or national origin. The landmark decision in Bostock v. Clayton County ruled that those protections include sexual orientation and gender identity.

“In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law,” the Supreme Court stated in its opinion.

While the decision applies to a different part of the law than HHS’ final rule, it could still have implications further down the line.

“There’s a big question right now about whether that rule is going to be able to go forward,” Kates said. “It would certainly face a lot of challenges in court.”

HHS narrows protections

HHS’ Office of Civil Rights is expected to publish the final rule in the Federal Register on Friday. The agency could potentially withdraw portions of it in response to the Supreme Court ruling.

The final rule would diminish the Affordable Care Act’s anti-discrimination provisions, defining discrimination on the basis of sex solely to mean male or female.

Under Section 1557 of the Affordable Care Act, healthcare providers are required to treat individuals consistent with their gender identity, and insurers are prohibited from imposing transgender-specific exclusions to care. Under the final rule, HHS’ Office of Civil Rights would no longer enforce these protections.

Not only could it affect care specific to an individual’s gender identity, but it could affect discrimination related to other health needs. For example, an insurer could deny coverage for transition-related care or mental health care, Kates said, or a transgender man could be denied treatment for ovarian cancer, or a hysterectomy.

“That is a risk here if this were to go forward unchallenged,” she said.

The American Medical Association wrote a scathing rebuttal of the rule after the initial draft was released last year.

“It legitimizes unequal treatment of patients by not only providers, health care organizations, and insurers, but also by the government itself — and it will harm patients,” AMA CEO Dr. James Madara wrote in a letter to HHS Secretary Alex Azar. “It deems certain classes of people less worthy of care, compassion, access, and good health than others. Such policy should not be permitted by the U.S. government, let alone proposed by it.”

Insurance groups, including America’s Health Insurance Plan and the Blue Cross Blue Shield Association, also spoke out in disagreement with HHS’ decision.

The final rule also narrows where the ACA’s broader anti-discrimination provisions would apply. It would limit them to healthcare providers, and only health plans that receive federal financial assistance, such as ACA marketplace plans or Medicare Advantage plans.

 HHS claims the changes will save insurers $2.9 billion over five years by not having to send “notice and tagline” inserts in healthcare mailings. But it also ignored submitted comments about the “potentially billions in costs” associated with the denial or delay of healthcare to LGBTQ people because of discrimination, Katie Keith, an attorney and researcher for Georgetown University’s Center on Health Insurance Reforms, wrote in HealthAffairs.

What it means for health plans

The Supreme Court decision would strengthen future legal challenges to HHS’ final rule, presenting up “uphill battle” for the agency if it continues to go forward with the changes, Keith wrote.

“Title VII and Title IX are structured in the same manner, the courts have long looked between the two statutes, and the Court’s decision made clear that being gay or transgender is “inextricably bound up with sex,” Keith wrote. “One would think that such a resounding Supreme Court decision would end the dispute, but that has almost never been the case with ACA litigation.”

Currently, 23 states specifically prohibit transgender exclusions in health insurance. Despite these protections, transgender patients have faced obstacles in accessing care. In a 2018 survey, a quarter of respondents said they had experienced a problem with their insurance in the past year related to being transgender.

There have been some improvements in the past four years. A growing number of marketplace plans have incorporated language saying they would cover some or all needed treatment for gender dysphoria. That number was 47% in 2020, according to Out2Enroll, an initiative to connect members of the LGBTQ community with health insurance. And the vast majority of insurers — 97% — did not include transgender-specific exclusions in their 2020 silver marketplace plans.

As for how employers and health plans will interpret the final rule, it’s difficult to say.

“It’s a little hard to know. I think we will see this unfolding over several months. Some plans may make changes based on the regulation. There will likely be litigation over it,” said Abigail Coursolle, a senior attorney with the National Health Law Program. “Some of these (rule changes) could lead to more subtle changes in how healthcare is delivered.”

But employers will also look to the Supreme Court decision as they make choices about health insurance benefits. The ruling might give them the impetus to ensure their health plans don’t have transgender health coverage exclusions.

“It is reasonable to assume this extends to benefits like health insurance and that those benefits must be offered equally to LGBT people. Similarly, the Court’s ruling should put insurers on notice that federal sex nondiscrimination protections, such as Title IX and thus Section 1557 of the ACA, extend to LGBT people,” Keith wrote in an email. “Fortunately, many insurers and employers have stopped using these discriminatory practices, but I expect that the ones that still do will be taking a look at their benefits offerings and making changes as needed.”

Most companies, but not all, extend health insurance benefits to same-sex spouses. The Supreme Court ruling could spur the remainder into action.

Photo credit: Matt Wade, Flickr

Everything You Need to Consider Before Locking Into High Cost Contracts With Consultants Coaches and Marketers – Part I

Like anyone else, even rational, bright, ever-skeptical attorneys are vulnerable to high-cost, low return coaching, consultant and marketing programs.  As I wrote  here  six years ago, there are plenty of reasons why attorneys are easy prey for questionable, pricey programs. 

For starters, many lawyers running their own firm particularly during economically-shaky times like these naturally feel anxious, making them vulnerable to quick fixes from professional salespeople who are trained to pounce when they detect a whiff of desperation.  Even those lawyers who undertake the legwork of seeking out recommendations or program reviews don’t know what they’re up against in the world of online influencers who surround themselves with a cadre of cultish followers who willingly provide puffed up testimonials. And most influencers aren’t immune to quid pro quos by offering favorable reviews to one coach in exchange for positive reviews in return.

Moreover, some lawyers often don’t get results even with coaches and marketers who have integrity and reputable programs and don’t engage in deceptive marketing practices. That’s not surprising. After all, coaching and marketing are an inherently personalized services with success dependent upon the right fit, which is entirely subjective.  Unfortunately, many attorneys who don’t succeed in a program are often unwilling to share their specific experience candidly because they feel ashamed of having wasted money, or a sense of failure for not getting results — even though the problem may have simply been due to lack of fit than lack of skill or determination.

For all of these reasons, I am reluctant to either promote or critique most of the available online marketing, consulting and coaching programs available in the legal space – even if some of the programs are potentially valuable to readers. Moreover, in these times, I would like for MyShingle to serve a a source of information on quality programs by lawyers and professionals of color that do not have the visibility that they deserve. Our profession continues to be dominated by white men, and to a lesser extent white women and we need diversity in the law practice management, innovation and entrepreneurship space in legal who aren’t Jay Foonberg and who can speak to the experience of building and growing and innovating in a world that is so different from how it looked thirty years ago (this isn’t a dig on Mr. Foonberg to whom I’ve given public props  for being  an innovator in his time – but we need to pass the baton).  

 Therefore, as a precursor to sharing information on ANY coaching, marketing, law practice or other programs, I would like to offer some guidance to lawyers on what to look for when choosing a law practice management, coaching, marketing or other money making program to ensure the right fit and to avoid wasting money.  Click to read in Part II.

Post-Pandemic Drop in New Cases Sees Upturn, But Billing Volumes Fall, New Clio Data Shows | LawSites

Last month, I reported on research into the impact of COVID-19 on law firms and clients, compiled by the practice management company Clio, based on anonymous data from its customers and from surveys of lawyers and consumers.

While that research found that the pandemic had caused a sharp drop in new legal matters coming to law firms, new data out today from Clio shows signs that the legal market is recovering, with a spike of new matters through the first week of June from -26% to -14% compared to baseline.

While still negative compared to baseline, Jack Newton, Clio cofounder and CEO, told me that he sees that as a very promising sign of recovery and says it was the largest spike in new matters since the pandemic began.

Even so, firms are still feeling the effect of that earlier drop in new matters, which led to a corresponding drop in billing volumes. The average law firm billed 14% less in April and 27% less in May compared to the prior year, Clio found.

And even though the increase in new matters should eventually result in an an increase in billing volumes, high unemployment rates have resulted in 71% of lawyers expressing concern about their clients’ ability to pay their legal fees, the survey found. A quarter of firms report having to forfeit more revenue compared to before the pandemic due to clients’ inability to pay.

Clio’s survey of consumers during May found that a quarter anticipate having to deal with a legal issue in the near future, with the majority of those describing their anticipated issue as coronavirus-related. Even so, and consistent with the prior survey, most consumers say they would put off addressing their legal issues until circumstances around the pandemic return to normal.

Today’s release is the second of Clio’s planned series of briefings over the coming months assessing the impact of COVID-19 on the legal industry and consumers. The findings are based on aggregated and anonymized customer data from Clio’s practice management platform as well as on surveys of legal professionals and consumers conducted during May.

Among other findings included in today’s research report:

  • Business-related practice areas have been less affected by others. Meanwhile, the areas that have seen the largest decline in new matters are traffic, criminal and personal injury.
  • Legal professionals are adapting to the “new normal.” Among legal professionals working from home, fewer say it is having a negative impact on their practices. At the same time, more firms report having adapted their client acquisition strategies during May as opposed to April.
  • Layoffs at law firms are increasing. Clio reports that the number of staff layoffs at law firms increased in April and May. Of two surveys conducted in May, roughly a quarter of firms said they had laid off staff and roughly 30% said they expect to to so.

Similar to findings in the first report, as many as a third of clients continue to believe that lawyers have stopped offering their services as a result of the pandemic, even though the survey found that only 2% of firms actually had.

The survey suggests that firms are likely to need to adjust their fees going forward. As of late May, Clio found that 15% of consumers had lost their primary source of income due to circumstances related to the pandemic, and 25% had experienced a significant decline in income.

On the bright side, a large number of firms see technology as more important to them than they did before the pandemic. This is especially true for electronic document sharing, e-signature software, and videoconferencing software.

Delegating The Mental Load When You’re Stuck At Home During COVID-19

Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome Nanda E. Davis back to our pages.

No one knows what our new normal will be, but we have already seen that our world is changing at every level. In other words, this is the perfect time to bring about positive and needed change, including in how we parent. With everyone stuck at home, it is more important than ever for dads and moms to equally share parenting responsibilities. In order to do that, moms and dads need to have open and honest communication about responsibilities, including the mental load.

What is the mental load? The mental load refers to all those things that need be remembered for the delicate balance of household, work, school, and extracurriculars to not to fall apart, including sports schedules, playdates, payments for daycare, and when muffins need to be delivered for a class party. Google “mental load,” and you will be inundated with articles (including ones from NBC, Huffington Post, and New York Times, just to name a few) explaining how the mental load is crushing moms.

For lawyer moms, the mental load was hard enough pre-COVID-19. Now that we are all trying to work from home while balancing childcare, the mental load feels extra heavy. How can we as moms delegate that mental load so that it doesn’t all fall on our shoulders?

Step 1: Identify What Is In Your Mental Load

Everyone’s mental load is different. The first step to delegating any of your mental load is to take the time to figure out what makes up your load. List everything you can think of, big and small, enjoyable and tedious. Include keeping track of everyone’s schedule, deadlines for school projects, school forms, bills, tasks that go into clothes, cleaning, and food, and anything that is necessary for all the activities we hope to be able to safely return to one day.  It may initially seem like creating a list is yet another task that adds to your stress, but it is impossible to delegate what you cannot identify.

Step 2: Talk To Your Significant Other About What Part Of The Mental Load You Want to Delegate

I see a lot of working moms who feel resentment and anger towards a spouse who is not offering to take over part of the mental load. However, your spouse cannot guess what it is that you would like them to do, or why you are stressed.

As you prepare for the conversation with your spouse, think about what you would most like to have off your plate. In an ideal relationship, you would take on the tasks that your spouse struggles with the most, and vice versa. Think about your strengths and weaknesses, and the strengths and weaknesses of your spouse. Is one of you better at details? Does one of you have more time during your day to pick up the phone and schedule appointments?

You might also want to start small, and maybe pick out two things that you really would like to have off your plate. When you talk to your spouse be clear, unapologetic, business-like, and communicate anything that you think is really important about the task. If you’re not used to having these conversations with your spouse, it can take practice, and you have to give yourself grace as you learn a new skill.

Step 3: Let It Go

Letting it go really involves two steps. First, you have to let go of the idea that to be a good mom you have to do it all. How you divide up any of the tasks on your mental load does not change the fact that to your children, you are one of the most important, influential people in their lives. You are a role model for how to have healthy relationship, communicate effectively, resolve conflict, and how to balance your personal and professional lives. This is even more true now that we are all staying home, and children are seeing a lot more of their parents. It is far more important that you are a good role model in these areas than whether you fill out permission slips. When your children grow up, think of how you would want them to raise their children and whether you would want them to insist that both parents pull equal weight.  Delegation does not mean that you have failed, and it is not a reason to feel guilty. On the contrary, it shows self-awareness and good self-advocacy, skills you want your children to have.

The second step: let go of the urge to micromanage or check up on your spouse. Will your spouse follow through on that task exactly as you would have? No. However, assuming you’re in a healthy relationship, chances are you married your spouse because you trust him to make good decisions and to look out for the best interest of your family. If he takes over lunches so you can schedule client meetings at that time, will he fix the same thing for the kids every single day? Maybe. So what? If the kids are happy and fed, then task accomplished. Keep in mind that these are new roles for your spouse and just as you would encourage a new employee or even your own children as they are learning a new skill, so too should you encourage and show confidence in your spouse. If you nag your spouse or go behind his back to do it yourself, then you’re sending the message that you don’t believe he can do it.  You delegated the task so that you don’t have to worry about it anymore, so stop the worrying and focus on everything else on your list.

COVID-19 has forced us all to re-examine work-life balance and our priorities. Change is happening at all levels of society — from big corporations to our private lives at home. Use this time to have open and honest conversations with your spouse, including ones about your mental load.


(Image by Bella Muse // www.Bella-Muse.com)

Nanda E. Davis opened her firm, Davis Law Practice, in Roanoke, Virginia, in 2014.  She specializes in divorce, custody, and matters involving Child Protective Services.  She is the mother of two boys and active in the Roanoke Chapter of the Virginia Women’s Attorney’s Association. More about her can be found on her website and she can be reached by email at nanda@davislawpractice.com.