Morning Docket: 10.14.20

* A law school dean accidentally emailed confidential bar exam results and then sent another email asking that the first message be deleted. Ask Michael Scott how successful that usually is… [Charlotte Observer]

* An autopsy suggests that the man allegedly struck by a car driven by the Attorney General of South Dakota died from the injuries he sustained from being hit by a vehicle. [NBC News]

* A female lawyer was roasted online yesterday for criticizing the outfit worn by Judge Amy Coney Barrett at her confirmation hearing. [Fox News]

* The Supreme Court yesterday declined to hear a case about whether President Trump violated the Emoluments Clause by maintaining ownership in businesses that receive payments from foreign governments. [CNN]

* A former lawyer is pursuing a new career as a bagel consultant. Guess that’s one way to make “dough”… [ABC News]


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.

The Continuing Amy Coney Barrett Spectacle — See Also

Amy COVID Barrett Acts Like She Doesn’t Know How She’d Rule On An Abortion Case: Except her entire record points to only one answer.

Speaking Of Refusing To Answer Questions: ACB refuses to commit to recusing in an Election 2020 case.

COVID Austerity Measure Rollbacks: At Stoel Rives.

Locke Lord Settles Discrimination Claims: Over bonus money.

The Legal Profession Is Strong: Despite the blows of 2020.

Amy Coney Barrett Won’t Commit To Recusing In Any Election 2020 Case That Makes It To Supreme Court

(Photo by Tom Williams-Pool/Getty Images)

I commit to you to fully and faithfully applying the law of recusal. And part of that law is to consider any appearance questions, and I will apply the factors that other justices have before me in determining whether the circumstances require my recusal or not. But I can’t offer a legal conclusion right now about the outcome of the decision I would reach.

— Supreme Court nominee Judge Amy Coney Barrett, in response to Sen. Patrick Leahy (VT-D) asking her to commit to recusing herself from any court cases related to election 2020. Barrett twice declined to step away from any such future cases that may arise between Donald Trump and Joe Biden in her responses to Leahy.


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.

Running The Most Successful Bank On Wall Street Apparently Too Hard

Will The Pandemic Change Law Department Views On Tech? 

The emergence of law department operations professionals, not surprisingly, has had a positive impact on their departments’ ability to use new tools. In fact, according to the respondents to the 2019 Law Department Operations Survey, the technology that LDO professionals rely on has become more effective across the board. 

Respondents were asked to rank different kinds of technologies on a scale of 1 to 10, with 1 being considered “not effective” and 10 being “extremely effective.” Of the 10 different types of technologies asked about in both 2018 and 2019, virtually all were considered more effective in 2019. 

The million-dollar question for 2020 — worth much more than a million, actually — is whether tools that were considered effective previously still are, now that law departments are under even more financial pressure and legal teams are so often working remotely.

For example, electronic billing was tied for our best performing technology last year, rating 8.0 out of 10. These systems, however, are under a lot more stress today. When everyone was in the office, electronic approval of invoices may have occasionally broken down with little impact. But not with approvers working from home. It will be interesting to see the extent to which LDOs still consider electronic billing to be effective.

In 2019, 70% of law department operations professionals said they have the right technology to do their job. But with the job changing so much, will they be able to say the same in 2020? This question and many more will be answered in the 13th Annual Law Department Operations Survey. If you’re an in-house legal ops professional, all you have to do is take the survey, and we will deliver the answers, along with 300+ additional data points, back to you at no charge.

Please take the survey today.

Amy Coney Barrett Says She Doesn’t Know How She’d Rule On An Abortion Case, But I Do And You Do Too

(Photo by Tom Williams-Pool/Getty Images)

For everyone who knows Merrick Garland’s seat on the Supreme Court was stolen from him (along with the 100+ lower federal judiciary seats that Senate obstructionism left empty), and who respects Ruth Bader Ginsburg’s final wish that the next president fill her vacancy on the Court, the Amy Coney Barrett hearings were always going to suck. And that was before her nomination fete became a COVID hotspot, and infected senators are at the hearings without a mask on risking the lives of everyone around them to rush through her confirmation days before the election. So, yeah, there’s a lot to be angry about. But there’s more. Of course, there’s more.

Yesterday was the first day of the Coney Barrett confirmation hearing. Dems hammered home health care, which is not quite what the GOP seemed to expect, seeing as they spent most of their time talking about religious freedom. But still, it went as most observers expected.

In today’s hearings, the abortion trip wire went off, and Coney Barrett basically refused to answer Senator Diane Feinstein’s questions about Roe v. Wade. She evaded, claimed not to have an “agenda,” and said, “I can’t express views on cases or pre-commit.” Check out the video for yourself.

But we all know how Covid Barrett will rule on reproductive freedom issues. Donald Trump campaigned on the promised he’d pick Supreme Court justices who would overturn Roe “automatically.” And Coney Barrett’s record shows that, in this case, Trump is keeping that promise. She’s ruled against reproductive rights the two times the issue was before her on the Seventh Circuit, and her writings before her time on the federal bench reveal an extreme viewpoint on abortion rights, as detailed by Nancy Northup, President and CEO of the Center for Reproductive Rights:

From 2010-2016, she was a member in the Notre Dame Chapter of University Faculty for Life. In 2006, she was a signatory on a newspaper advertisement sponsored by St. Joseph County Right to Life. The ad called for an end to Roe v. Wade and Barrett specifically signed onto a statement that she opposes “abortion on demand” and defends “the right to life from fertilization,” an extreme legal position that has implications for contraception, abortion care and fertility treatments. In 2012 she signed onto an advocacy letter that called contraception and sterilization “gravely immoral and unjust” and wrongly characterized emergency contraception as “an abortion-inducing” drug. She subscribes to the judicial philosophy of originalism that rejects constitutional protections for abortion rights. Her writings are clear that she does not view Roe as a “super precedent” and the principle of stare decisis would not be a restraint to overturning Roe. In the two abortion rights cases that have come before her as a federal appellate judge, Judge Barrett joined opinions that suggest upending Supreme Court law on both the substantive right to abortion and the procedural safeguards that allow the right to be vindicated in court.

This is why, for only the second time in the Center for Reproductive Rights’ history, they are opposing someone’s elevation to the Supreme Court. In fact, they say Coney Barrett has the “most extreme anti-reproductive rights record since Judge Robert Bork.”

Anyone who values the right to choose what is best for their own bodies, or maybe has benefited from experimental medical treatments that were developed using stem cells from an aborted fetus (ahem, Donald Trump), should be terrified. So whatever equivocations are trotted out during the confirmation process, Coney Barrett’s record speaks for itself, and it has an awful lot to say.


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).

Did Cowboys QB Dak Prescott Have Proper Insurance Coverage Prior To Injury?

The season-ending injury to Dallas Cowboys’ quarterback Dak Prescott’s ankle has caused many to begin to wonder what will happen to Prescott from an economic perspective in case he never comes back to playing at full health. While unlikely, there is a possibility that Prescott will be unable to fully regain his prowess, which would be rather unfortunate for the quarterback, who was performing on a one-year, $31.4 million guaranteed contract when the injury occurred.

The positive for Prescott is that it appears he has covered himself with insurance policies. Per a September 8, 2019, article on Bleacher Report, Prescott has maintained loss of value and permanent disability insurance policies worth more than $50 million, which protect Prescott in case he is severely injured. Assuming he maintained the policies, he should be resting a bit more peacefully after surgery.

It is also possible that Prescott increased the value on his insurance policies after Patrick Mahomes and Deshaun Watson signed record-breaking deals for NFL quarterbacks. Even if he did not, Prescott was likely paying high six-figures and possibly a bit above $1 million in premiums for his insurance policies, per Matthew Vuckovich of The Gilbert Group, who works with athletes, entertainers, and surgeons on their insurance planning, and said that increasing the policy limits would have been money well spent.

Vuckovich, who has not worked with Prescott, said that if Prescott were his client he would have recommended sourcing the market for all cover holders for Lloyd’s of London to determine who was offering the highest loss of value and personal disability limits with respect to policy language. He would then try to obtain the highest coverage, irrespective of the premium, because Prescott is what he referred to as a “maximum contract guy.”

“Coverage would depend on what the cover holders are sourcing from the league,” Vuckovich said. “They contact scouts, front-office personnel, etc., to determine market value. They have their own internal teams that handle this for the different sports.”

While permanent disability benefits, which are paid out tax-free, would only kick in should Prescott never take a snap under center ever again, loss of value benefits (also paid out tax-free) could prove valuable to the injured quarterback. Vuckovich said that it is standard in the sports industry for insurers to offer one- to four-year policies irrespective of the term of the player’s contract.

“Loss of value is a threshold marker going into a contract year,” Vuckovich added. “The policies are constructed based upon data gathered and the threshold that the insurance company feels comfortable using. The tax-free benefit to the player is basically the difference between the threshold from the insurer and what the player signs for. That includes non-guaranteed money.”

People commonly talk about disability insurance not being paid. However, Vuckovich said that many of his clients have been paid out, whether in full or based on a settlement. Prescott and his advisors could be busy reviewing the Cowboys quarterback’s policy language as he attempts to recover from the nasty injured suffered on October 11.


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.

Trump Taps Rudy Giuliani For SCOTUS Election Battle. LOL, Go For It Dude!

(Photo by Alex Wong/Getty Images)

The Daily Beast reports that Trump is planning to put Rudy Giuliani and Jay Sekulow in charge of contesting the result of the presidential election in court, counting on a 6-3 Republican-appointed majority to return him to the White House for another four years.

“I want Jay and Rudy on this,” Trump said, according to a source.

Because who wouldn’t want a guy who wanders around drooling with his fly down as he rants on YouTube about non-existent servers in Ukraine hacked by Hillary Clinton and the miracle of hydroxychloroquine heading up their legal defense?

As for Jay Sekulow, while he has had some success at the Court, his last appearance, where he argued that the president enjoys a magical shield of immunity to all criminal process and investigation, crashed and burned, with the Justices directing all serious questions to his co-counsel William Consovoy before holding that actually the laws of this land do apply to the president.

Consovoy has ably handled the Trump campaign’s gazillion lawsuits challenging local voting laws. Just yesterday he successfully convinced both the Fifth and Sixth Circuits to bless a one-ballot-dropbox-per-county rule. (Because one box for Harris County, TX — population 4.7 million — and one for Loving County, TX — population 134 – is fine, just fine.)

But he’s not part of Trump’s inner circle of guys willing to travel to Ukraine and try to gin up a bogus investigation of Joe Biden, then head to Fox every night to flog the story while listening to Jeanine Pirro shriek.

Also, Trump is under the impression that Rudy Giuliani, a lobbyist whose last court appearance was in a car crash case for one of his girlfriend’s daughters, is the modern day James Baker.

“If the election lands in the courts after Election Day, it makes perfect sense that the president would want lawyers who he trusts the most to be in charge of his case,” said Steven Groves, who previously worked as a lawyer and then spokesman in the Trump White House. “The president trusts Jay and Rudy, especially if the case should go all the way to the Supreme Court, where Jay has argued many cases. Even though Rudy doesn’t have a background in election law, it makes sense that the president would ask him to play the same role that Jim Baker played back in 2000 for George W. Bush.”

Yes, yes. Rudy Giuliani is the consummate Washington insider, in command of all his faculties and the ideal person to helm a multi-state Brooks Brothers riot. Have at it, fellas!

Trump Taps Rudy Giuliani and Jay Sekulow to Oversee Post-Election Legal Battles [Beast]


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

Biglaw Firm Announces Complete Rollback Of COVID Austerity Measures

(Image via Getty)

As we get closer and closer to the end of 2020, more and more Biglaw firms that instituted austerity measures during the height of the coronavirus crisis have walked them back either in part or in full. Today, we have news from Stoel Rives, a firm that came in 132nd place in the most recent Am Law 200 rankings, with $236,541,000 in gross revenue in 2019.

Back in April, the firm announced across-the-board salary cuts and employee furloughs. Partner distributions were reduced by 20 percent; associates, staff attorneys, and of counsel attorneys had their salaries slashed by 20 percent; and staff saw hourly reductions with corresponding pay cuts (5 percent for those earning less than $75,000; 10 percent for those earning $75,000-$100,000; 15 percent for those earning $100,000-$150,000; and 20 percent for those earning over $150,000). In September, all of those cuts were partially rolled back, with third quarter partner distributions reduced by 15 percent instead of the 20 percent; associates, staff, and of counsel lawyers had their salaries slashed by 10 percent instead of 20 percent; and staff saw their hours and compensation cuts reduced as well (staff with a 20 percent reduction changed to 10 percent; staff with a 15 percent reduction changed to 7.5 percent; staff with a 10 percent reduction changed to 5 percent; and staff with a 5 percent reduction returned to full salary and schedule).

Now, thanks to the firm’s financial performance, all of these cuts have come to an end. Melissa Jones, the managing partner of Stoel Rives, released this statement:

Stoel Rives is pleased to announce the elimination of its temporary pandemic and economic uncertainty pay cuts. By October 12, 2020, all lawyers and staff will have their base pay returned to its pre-reduction level. This decision is based on the firm’s performance through the end of Q3. The firm will continue to operate in a conservative manner as the fourth quarter remains uncertain for the legal industry.

Congratulations to everyone at the firm on getting back to their full salaries. Now it’s time for them to wonder if they’re going to be made whole.

If your firm or organization is slashing salaries or restoring previous cuts, 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.


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.

Biglaw Firm Settles Bonus Discrimination Claim

Back in April of 2019, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) director Craig Leen told legal industry representatives his office was concerned about issues of diversity and representation at law firms, and they’ve been busy holding Biglaw’s feet to the fire.

Earlier this month, OFCCP announced a settlement worth $150,000 with the Biglaw firm of Locke Lord. As reported by Law360, this resolves allegations that female associates in a Rhode Island office received smaller bonuses than their male counterparts over a two-year period (2012-14). During the time of the alleged violation, the office was operated as Edwards Wildman Palmer LLP, prior to Locke Lord’s acquisition of that firm in January 2015.

OFCCP notified Locke Lord of evidence of pay discrimination involving 22 female associates in October of 2018:

“OFCCP’s analysis demonstrates that a statistically significant disparity in bonus compensation remained even when legitimate factors affecting bonuses were taken into account,” the agreement reads.

The settlement, which also stipulates the firm will not retaliate against associates receiving money from the agreement, has been lauded as “an outstanding example for the legal industry to follow,” by Diana Sen, northeast regional director of OFCCP. And Leen had this to say about the agreement:

“Locke Lord is working with us to ensure pay equity for its female associates,” Craig Leen, director of the DOL office, said in a statement Thursday. “Together, we will ensure that the company’s employment practices comply with equal employment opportunity requirements.”

Though the firm denies the allegations, their statement on the settlement affirms Locke Lord’s commitment to diversity:

“Diversity and inclusion are integral parts of Locke Lord’s strategic plan for success and one of our core values,” according to the firm’s statement. “The firm is committed to ensuring that all of our attorneys and staff are afforded equal employment opportunities.”

Regardless of the specifics in this case, it’s good to see the issue of equal pay getting attention.


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).