Category: News Feeds

The National Conference of Bar Examiners has spent most of the COVID-19 crisis on the defensive, pushing back against any challenge to its near-monopoly over the attorney licensing exam process. Up until now, that’s included casting aspersions on states considering an online exam option — something the NCBE was unwilling to consider itself. But as of yesterday afternoon, the NCBE will support online exams. But not really.

With large, in-person gatherings discouraged, the annual July bar exam became a dangerous and, in most places, impossible proposition. Necessity being the mother of invention, the crisis got a lot of the country wondering, “why do we even have this test anyway?” and proposals for common sense reform started percolating and even taking hold in some jurisdictions. But common sense reform is not what an entrenched institution likes to see. After releasing a distressingly offensive report to trash diploma privilege advocates, the NCBE turned its ire toward states considering online bar exams — Massachusetts, Indiana, and Michigan — offering passive-aggressive statements of support while trying to intimidate other states by playing up that online exams would never get the NCBE seal of approval and therefore doom applicants to a career with no portability. States could, of course, just pass reciprocity agreements on their own, but that’s neither here nor there. The message was: step outside our process of forcing students into a bar exam during a pandemic or you’re doing a profound disservice to graduates.

But the NCBE has now updated its policy and will support these online exam states… with their table scrap questions:

NCBE will provide a limited set of questions (MBE, MEE, MPT) to jurisdictions for an emergency remote testing option for local admission during the COVID-19 crisis. The materials will be offered for a remote administration on October 5–6, after all three administrations of the bar exam/Uniform Bar Exam (UBE) have occurred, and will provide jurisdictions an emergency option should administering the in-person bar exam not be possible.

This remote testing option will not constitute the full bar exam or the UBE. Scores earned on the remotely administered test will be used for local admission decisions only, and will not qualify as UBE scores. The scores will not be eligible to be transferred as UBE or MBE scores to other jurisdictions or released to candidates via NCBE Score Services.

So, thanks for absolutely nothing.

The value of nationalizing bar exam authorship is the ability to frame questions that offer transferability between jurisdictions. If these exams will have no value outside of the home state, then the home state can draft questions just as good as the NCBE rejects. This is beyond an empty gesture from a test-administration agency that could devote itself to modernizing but simply sees no reason to while it’s holding monopoly power.

“NCBE continues to strongly advocate that a full-length, standard, in-person administration of the bar exam/UBE is best for a number of reasons, including psychometric issues, exam security, and the testing environment of candidates, who may not have access to comparable testing conditions or equipment,” said NCBE President and CEO Judith Gundersen, who didn’t take a bar exam herself having been admitted via diploma privilege. The crocodile tears over disparities in testing equipment nod toward genuine income inequality concerns before you remember that all of these students just did a semester over Zoom followed by online exams making this worry specious at best. There are a lot of issues to be resolved when it comes to reliably administering exams online… but this is the time to resolve them rather than ignore them.

And if the organization we rely on for bar examination isn’t up to the task of moving into the 21st century, then don’t use them. In an ideal world, the NCBE would use its market power here to be an innovator because everyone is actually better off with a standardized test allowing maximum portability. But in the absence of any vision coming from them, write your own exams and form your own agreements on portability and reciprocity. There’s nothing magical about the NCBE other than their ability to scare officials into imagining change.

NCBE Trashes Diploma Privilege, Sprinkles In Some Racist And Sexist Conclusions
With NCBE Quibbling Over Online Bar Exams, Massachusetts Says They’ll Just Write Their Own
Indiana Orders Remote Bar Exam In Fit Of Reasonableness
Michigan Joins Indiana In Administering Online Bar Exam

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.

As confirmed by the Public Affairs Office of the U.S. Department of Justice, here are the five young lawyers who have just been awarded Bristow Fellowships, the prestigious one-year fellowships in the Office of the Solicitor General that allow their holders to practice before the Supreme Court just a year or two out of law school:

Nicola Cohen (Columbia 2018 / Owens / Abrams (S.D.N.Y.))

Kyle Grigel (Stanford 2019 / Sutton)

Aaron Roper (Yale 2019 / Garland)

Yishai Schwartz (Yale 2018 / Cabranes / Karas (S.D.N.Y))

John Henry Thompson (Chicago 2018 / Sykes / Griffith)

Also courtesy of the DOJ, here are the two new Phillips Fellows:

Alexander Kristokfcak (NYU 2020 / Koeltl (S.D.N.Y.) 2020 / Lee 2021)

Kevin Brad Sears (UVA 2020 / Oldham 2020)

You can read more about the Phillips Fellowship here.

I’ll repeat my observations from last year’s Bristow Fellows post: “the gender balance leaves something to be desired” — Yishai Schwartz is a guy, in case you were wondering — and the law schools and lower-court judges minting Bristow Fellows are, for the most part, the usual suspects.

But a few new names are worth noting: Judge Ronnie Abrams and Judge Kenneth Karas (both S.D.N.Y.), among the Bristow Fellowship feeders, and Judge Kenneth Lee (9th Cir.), among the Phillips Fellowship feeders. News of this nature will only enlarge and improve their clerkship applicant pools — although as highly regarded judges on two top courts, those judges already had their pick of the litter. (I’m not counting Judge Koeltl and Judge Oldham as “new” because even though they don’t feed at Garland- or Griffith-like levels, they have sent clerks to SCOTUS in the past.)

Congratulations to the newest recipients of the Bristow and Phillips Fellowships, and best of luck to them during their time in the Office of the Solicitor General.

P.S. In light of everything else in the news right now and the difficult moment in which our nation finds itself, I have keep this post brief. Because my column appears every two weeks, I tend to plan out my columns well in advance, which was the case here.

(Flip to the next page for the names of the past 10 classes of Bristow Fellows, along with rankings of the law schools and judges that have produced the most Bristows over the past decade.)

The Hotshot team has put together a list of ways we can support law students and lawyers with remote training and learning.

We’d like to help in any way we can — whether you’re a law school student who wants to learn the basics of M&A and litigation, a law firm that’s trying to design engaging remote training programs for the summer and fall, or a pro bono organization giving advice to  clients in need.

(For anyone not familiar with Hotshot: we help lawyers and law students develop their legal, business, and technology skills through short videos, quizzes, and outlines and we help law firms and law schools plan and deliver engaging training programs. Our customers include Am Law 100 and 200 firms, top law schools, and regional and international firms.)

For Law Students and Schools: Free, Unlimited Access to Hotshot

Current law school students and faculty members can sign up at our website to receive immediate, free access to our more than 150 short courses covering corporate, litigation, business acumen, and technology topics.

Faculty members: Please contact us if you’d like to discuss ways to incorporate digital learning into your classes, clinics, or career services programs. We offer lesson plans, hypos, model curriculums, and more. We’re working with a lot of schools and would like to help in any way we can.

For Law Firms: eBook on Remote Training for Associates and Help with Virtual Training Programs

To help firms plan and deliver engaging remote training programs, we published this free eBook: Remote Training for Associates.

The eBook is for PD teams, recruiting teams, and partners. It provides:

• Tips and strategies for implementing effective synchronous and asynchronous remote training programs
• Remote training guides to help plan engaging remote group training programs
• Model curriculums for M&A, litigation, and business acumen programs
• Advice from partners and PD leaders
• Self-directed learning paths for summers and associates (even if a firm’s summer program has been canceled)

We’re offering free consultations on the issues covered by the book, and the book is designed to be helpful whether or not your firm is a Hotshot customer.

In addition, we’re offering reduced-rate, short-term subscriptions for law firms that aren’t yet Hotshot customers.

For A2J, Not-for-Profit, and Pro Bono Lawyers: Free Access to Hotshot 

Lawyers and organizations in these categories can now have free access to Hotshot. Please sign up on our website using your .org email address or contact us at info@hotshotlegal.com.

We know that videos on double materiality scrapes and litigation holds may not be as interesting as Tiger King or a second run through The Sopranos, but hey — it’s also good to learn some new professional skills!

You can learn more about any of the above, sign up, or contact us at www.hotshotlegal.com.

For more information on Hotshot, read here.

It is not an unfair criticism of Biglaw to say they are disconnected from the society they ostensibly serve. They frequently operate in a world of high finance and bet the company litigation that feels removed from the everyday lives of so many. But that’s the thing about 2020, it has a knack for bringing the problems of the world right to your front door.

So in the wake of protests against racism sparked by the death of George Floyd under the knee of police officer Derek Chauvin, how is Biglaw responding? Every firm will have it owns response from the concrete (donating resources and pro bono hours) to the symbolic (expressing outrage) to the silent (the work never stops in Biglaw). Above the Law is committed to documenting the reactions of all the Biglaw firms.

The first Biglaw firm that Above the Law heard had made a statement about the protests is also one of the most prestigious. Skadden’s managing partner, Eric Friedman, sent an all-firm email condemning racism and specifically calling out the recent violent deaths of George Floyd, Breonna Taylor, and Ahmaud Arbery.

Friedman also reaffirmed the firm’s commitment to using pro bono efforts to combat racism saying the firm was looking at even more ways to use that platform. He also announced the firm made a $100,000 donation to the NAACP Legal Defense Fund.

You can read Skadden’s full statement here.

The email that Davis Polk’s managing partner, Neil Barr, sent out is a short but heartfelt statement of grief and anger over recent events. He also affirmed the firm’s rejection of bigotry and dedication to diversity and inclusion.

The statement from Davis Polk is here.

The email from Kim Koopersmith, managing partner at Akin Gump, connected all the dots from recent events (George Floyd, Ahmaud Arbery, Christian Cooper, and the violence against Asian Americans in the wake of COVID-19) and concluded, “It is hard not to feel the gulf that exists between the promise of our countries and the reality that continues to exist for people of color. I have no answers, but I do think that it is crucial that we  take the time to digest events and reflect on what this says about us and how much more there is to be done to achieve the level of dignity, respect and equality that everyone deserves.”

Akin Gump’s statement is available here.

Lowenstein Sandler’s Gary Wingens had one of the most thorough responses to recent events from a Biglaw firm. The firm encouraged all employees to speak up if they hear something racist, they acknowledged the emotional toll events are taking on employees and provided links to firm mental health resources, they mentioned social justice organizations that need support, and reaffirmed the firm’s pledge to support anti-bias efforts with their pro bono work.

Finally, the firm committed to keep the conversation about race and bias going, with a discussion series:

In the coming weeks, we will host multiple in-depth discussions exploring the impact of bias and racism on people of color and it’s corrosive impact on our society more generally, as well as what we can do to support one another.

Lowenstein Sandler’s full statement is available here.

Another firm that made a statement about recent events is Littler. The statement acknowledged the systemic injustices in this country and condemned any form of intolerance. They also offered this to their employees and colleagues of color:

We’re here for you; we’re listening; and we stand in solidarity with you and all those who face ongoing systemic marginalization, racism and oppression.

Littler’s statement is available here.

We need your help to make this list as complete as possible. If your firm has made a statement about Black Lives Matter, George Floyd, Breonna Taylor, Ahmaud Arbery, Christian Cooper, or the protests, let us know. You can email us or text us (646-820-8477). We’ll regularly update this post as we receive more information.

Current list of Biglaw statements:

Akin Gump
Davis Polk
Littler
Lowenstein Sandler
Skadden

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).

The point of “practice waivers” — policies that allow law school grads to engage in some limited range of practice while under the supervision of licensed attorneys — is to allow graduates to move forward with their career at a time when actually taking the bar exam is a tremendous challenge if not an impossibility. Usually these waivers come with a termination date, requiring the applicant to pass the bar exam within some limited time frame. The creditors on their student loans aren’t going to take a break, so they need to be able to get to work and start practicing.

Unlike some states pushing forward with dangerous exams on the strength of “absolve us if we end up killing you” waivers, Kentucky is taking safety seriously. Not seriously enough to cancel the July exam or explore online options, mind you, but seriously. The state has expanded the exam to include space at the University of Kentucky, the University of Louisville, and Northern Kentucky University, and agreed to offer a Fall administration as well to further space out examinees.

The state is also offering a practice waiver option, yet places it at the most curious juncture in the process:

In the meantime, please be aware that applicants may register to practice law immediately after taking the 2020 Bar, under attorney supervision, pursuant to Supreme Court Order 2020-37. The temporary rule allowing supervised practice of law pending admission will be in effect once the applicant has taken their respective 2020 Bar Examination.

Yes, after taking the bar.

It’s a nice gesture, but it’s unclear what exactly this accomplishes in terms of dealing with the pandemic. Allowing supervised practice immediately after taking the exam is actually a good policy in ordinary times. Assuming the state is confident in the judgment of its admitted attorneys, there’s little to no risk to the public in this move and it allows examinees to perform more work while waiting on grading. But it doesn’t seem to bring much to the table in these times. Graduates still have to brave two days in an enclosed space with strangers in order to get this waiver that allows them to perform… slightly more tasks than non-lawyers already can perform under the supervision of an attorney.

Ostensibly this policy aids Fall examinees who can return to their jobs immediately after the exam without waiting until results come back. But that’s a fairly limited population, all things considered. It’s as if the state heard about practice waiver proposals and said, “let’s do that… ooh… but not that part” and then severed the part that makes it a viable strategy for advancing young careers through the pandemic.

In any event, while we can criticize elements of the strategy, Kentucky’s at least trying to help examinees which is more than we can say for some states out there.

Earlier: Bar Exam Applicants Forced To Sign COVID Waiver In Case In-Person Exam Ends Up Killing Them

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.

Peaceful protests and rioting and looting alike continue to take place across America in the wake of the officer-involved killing of George Floyd, with the president now threatening to bring in the military to enforce law and order. A furloughed Biglaw associate was charged for allegedly taking part in some of these violent crimes, and he had his first appearance in court yesterday.

Please note the update below.

Colinford Mattis, 32, who was furloughed in April as part of Pryor Cashman’s austerity measures against the pandemic, stands accused of damaging a New York City Police Department vehicle with a Molotov cocktail during a Brooklyn protest. Mattis was allegedly behind the wheel of a van while his passenger, Urooj Rahman, 31, a 2019 graduate of Fordham University School of Law who’s been identified as a human rights lawyer, allegedly threw an incendiary device at an unoccupied NYPD vehicle.

During his appearance at the Eastern District of New York, federal prosecutors argued that Mattis should be detained because he had “not demonstrated himself to be a rational person” during the attack, with an assistant U.S. attorney arguing that the “evidence against [Mattis and Rahman] is extremely strong and they are seeking relief back into the same community that is still suffering from the same tensions.” Amid all of the ongoing unrest, the prosecutor said, “This is not the environment into which we want to release bomb-throwers.”

Judge Margo Brodie, however, was not convinced, ordering Mattis’s release along with Rahman, countering that while “[t]he conduct was reckless, it was violent, it was completely lawless,” as attorneys, they both had stable lives prior to these alleged acts.

(Image via LinkedIn)

Brodie upheld U.S. Magistrate Judge Steven Gold’s ruling that Colinford Mattis … could be released to confinement in his Brooklyn home on a $250,000 bond. She denied prosecutors’ request for a one-day stay to allow them to appeal to the U.S. Court of Appeals for the Second Circuit, but spokesman John Marzulli of the U.S. Attorney’s Office confirmed they intend to appeal regardless.

At the time of publication, Pryor Cashman had no update on the status of Mattis’s employment with the firm. Please note the update below for more details.

UPDATE (12:05 p.m.): Pryor Cashman has suspended Colinford Mattis from the firm without pay pending the resolution of his criminal case. Considering Mattis had already been furloughed, this isn’t much of an update at all.

US Judge Orders Release of Furloughed Pryor Cashman Associate on $250,000 Bond in Molotov Cocktail Case [New York Law Journal]

Earlier: Furloughed Biglaw Associate Charged In New York Molotov Cocktail Attack

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.

If you follow this column and keep a close eye on the cannabidiol (CBD) industry, you know that the FDA deems the sale and marketing of CBD-infused dietary supplements unlawful. This rationale stems from an exclusion clause in the definition of “dietary supplement” under the Food, Drug and Cosmetic Act (FDCA) that generally disallows the use of an FDA-approved “drug” as a dietary supplement (the Drug Exclusion Rule). Specifically, the Drug Exclusion Rule provides that an article cannot be marketed as a dietary supplement if it was investigated or approved as a drug before the article was marketed as a dietary supplement (or food). Consequently, because CBD was investigated and approved as a new drug ingredient — Epidiolex — before CBD was marketed as a dietary supplement, the sale and marketing of these products violates the FDCA.

Yet, despite the FDA’s position, a growing number of CBD stakeholders have been arguing that the Drug Exclusion Rule does not apply to their CBD products sold and marketed as dietary supplements because they contain full- or broad-spectrum hemp extract, as opposed to CBD isolate, which is the substance that was approved in Epidiolex.

This distinction can be linked to a 2001 court decision, Pharmanex, Inc. v. Shalala, which pertained to the status of lovastatin, a compound found in red yeast rice. Although red yeast rice had been used for healing purposes for thousands of years, the isolated compound was approved by the FDA as a drug ingredient in the treatment of cholesterol.

Following the approval of lovastatin as a drug ingredient, the FDA challenged the use of this substance in a dietary supplement and prevailed. The court held that the lovastatin found in the dietary supplement was not in its natural form because its manufacturer deliberately selected and used a method to produce specific levels of lovastatin that were greater than those naturally present in red yeast rice. In addition, the court determined that the product sold as a dietary supplement was a drug because it was expressly marketed as the isolated lovastatin compound.

The Pharmanex case could dictate how the FDA treats hemp CBD dietary supplements, specifically full- and broad-spectrum hemp extracts.

Hemp, including full- and broad-spectrum hemp extracts, contains many active compounds, including cannabinoids and terpenes. Hemp can be processed in a number of ways, some of which will isolate those active compounds. The active compounds can be isolated through chemical extraction by removing water, fiber, and other unwanted materials. Alternatively, hemp can be processed without the use of chemicals.

Epidiolex is an example of a CBD isolate. Generally, a CBD isolate contains no other compounds. In turn, full- and broad-spectrum hemp extracts contain a full range of cannabinoids — minus THC in the case of broad-spectrum hemp extract.

Following the reasoning in the Pharmanex case, CBD isolate may be subject to the Drug Exclusion Rule, but processed hemp, such as full- and broad-spectrum hemp extracts, may not. This is because, like red yeast rice, hemp has been consumed as a food and a nutritional supplement for thousands of years. Hemp and full- and broad-spectrum hemp extracts are not the same as a CBD isolate. Like lovastatin occurring in its natural form, hemp and full- and broad-spectrum hemp extracts are not chemically enhanced. However, CBD isolate or processed hemp that contains isolated and increased concentrations of CBD would be comparable to the isolated lovastatin compound in the Pharmanex case, and thus, could only be legally sold as drugs.

The parallels between the Pharmanex case and CBD are hard to ignore. However, while this legal argument has merit, it is purely speculative. Indeed, to my knowledge, no CBD company has yet brought forth this legal theory to challenge the FDA’s position in a court of law.

Nevertheless, it is worth mentioning that in its statement released shortly after the enactment of the Agriculture Improvement Act of 2018 (the 2018 Farm Bill), the FDA suggested that it may consider such argument against the application of the Drug Exclusion Rule to full- and broad-spectrum hemp extracts in regulating CBD products:

[P]athways remain available for the FDA to consider whether there are circumstances in which certain cannabis-derived compounds might be permitted in a food or dietary supplement. Although such products are generally prohibited to be introduced in interstate commerce, the FDA has authority to issue a regulation allowing the use of a pharmaceutical ingredient in a food or dietary supplement. We are taking new steps to evaluate whether we should pursue such a process. (Emphasis added).

Indeed, as the agency explained in its 2016 draft guidance for new dietary ingredient notifications, the FDA Secretary has the authority to override the Drug Exclusion Rule by issuing “a regulation, after notice and comment, finding that the ingredient, when used as or in a dietary supplement, would be lawful under [the FDCA].”

Moreover, the recent introduction in Congress of H.R. 5587, which would exempt hemp CBD from the FDCA’s Drug Exclusion Rule, thereby permitting the sale of hemp CBD as a dietary supplement in interstate commerce, suggests that lawmakers are not pleased with the agency’s current treatment of hemp CBD products and support the industry’s position that CBD products be regulated as dietary supplements.

Only time will tell how the FDA will ultimately regulate CBD products, but one thing seems certain: if the FDA opts to maintain a strong stance and treat all CBD dietary supplements as “drugs,” then the parallels between red yeast rice and hemp CBD will likely be litigated to settle this issue.

Nathalie Bougenies practices in the Portland office of Harris Bricken and was named a “2019 Rising Star” by Super Lawyers Magazine, an honor bestowed on only 2.5% of eligible Oregon attorneys. Nathalie’s practice focuses on the regulatory framework of hemp-derived CBD (“hemp CBD”) products. She is an authority on FDA enforcement, Food, Drug & Cosmetic Act and other laws and regulations surrounding hemp and hemp CBD products. She also advises domestic and international clients on the sale, distribution, marketing, labeling, importation and exportation of these products. Nathalie frequently speaks on these issues and has made national media appearances, including on NPR’s Marketplace. Nathalie is also a regular contributor to her firm’s Canna Law Blog.

* The Supreme Court has declined to hear a case about mandatory bar membership. Looks like all of us will be shelling out money for bar dues for the foreseeable future. [Bloomberg Law]

* Attorney General Barr looked on as people protested over the death of George Floyd outside of the White House yesterday. [Fox News]

* New York is predictably experiencing a spike in litigation filings now that new cases can be initiated. [Advance Local]

* The two Brooklyn attorneys accused of firebombing an NYPD police car have been granted bail. [New York Times]

* The Second Circuit has rejected claims of qualified immunity over the shooting of a mentally ill man. [New York Law Journal]

* A lawyer who had his client’s case dismissed due to failure of service of process, and falsely claimed he had malpractice insurance, has been suspended from practice. Maybe this lawyer should get malpractice insurance for real if he ever practices law again… [Virginia Lawyers Weekly]

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.