It’s Not Your Imagination — This Is The Most Challenging Bar Exam Season Ever

This exam cycle has without a doubt been the most difficult—nothing comes close.

— Diane Bosse, retired chair of New York State Board of Law Examiners, tells Law.com what it’s been like trying to administer the 2020 bar exam. Bosse retired effective September 2, having previously announced she’d retire before the July 2020 bar exam, but well, COVID had other plans. Retired Judge Carmen Beauchamp Ciparick, now of counsel at Greenberg Traurig, is stepping in as the new board chair. Chief Judge Janet DiFiore said of the appointment, “We are fortunate to have someone of Judge Ciparick’s ability and experience to serve in such an important post. The Board of Law Examiners is the gatekeeper that protects the quality and integrity of the legal profession. I am certain that Carmen Ciparick will lead the Board with great distinction.” 

Blowing Up The Legal Monopoly

Over the past few years, California, Utah, and other states have been quietly exploring allowing nonattorneys to provide limited legal services or share in attorneys’ fee arrangements. But while those states have been dipping their toes in the pool, Arizona just shouted “cannonball” from the high dive. Starting January 1, 2021, Arizona regulations on who can provide legal services will be fundamentally reformed and opened up to nonlawyers. You can read the Arizona Supreme Court’s complete 91-page order and attachments here.

As an Arizona-born and raised lawyer at a law firm founded back in our territory days, I’ve long believed that, if done right, these kind of changes could spur innovation and provide wider access to the legal system. So, how did my home state do? Let’s take a look at the coming changes and their potential ramifications.

Same Bar, Infinitely Bigger Tent

Three major changes are coming down the pike for the Arizona legal industry. First, the state bar will begin certifying a new class of legal service provider called the Legal Paraprofessional. Requirements haven’t been set forth yet, but LPs will be certified in specific areas of the law and authorized to represent clients in certain matters before courts. The bar is characterizing the certification as akin to a nurse practitioner for law. Any certified LPs must pass a character and fitness review, and they will be subject to the same ethical rules and disciplinary procedures as a JD-holding attorney.

Second, the bar will also be charged with licensing a new class of entity, the Alternative Business Structure. An ABS is an organization providing legal services that is owned, operated, and/or managed by nonattorneys. ABS’s will again have to go through the bar to be certified, but they serve as a way for non-law-firm organizations to start offering legal services as part of their model.

Finally, the ethical rules barring fee-sharing with nonattorneys have been nuked outright. Firms no longer will need to engage in convoluted compensation agreements with their nonattorney managers and staff to allow them to share in the firm’s success.

Lawyers have held a professional monopoly for decades, with some justification, but monopolies lead to stagnation, decay, and inefficiency. It’s given us a legal system where the vast majority of the public can’t afford a lawyer when they need one. The time has long been right to try to correct that deficiency in access to justice.

A Peek Into The Crystal Ball

The potential ramifications from these changes are enormous, and if history is any guide, the biggest changes will likely come from an angle no one expects. Having laid out that caveat, here’s where I think the biggest changes will occur.

I initially thought these changes would lead to huge new competition on the more consumer-facing side of private law, but I’m not convinced many small or solo law firms will feel a huge increase in competition. Rather than compete for the customers who can already afford lawyers, I’d expect LPs and ABS’s to initially pursue the untapped hordes of people who’ve never been able to afford legal services. The companies that figure out how to service the clients the traditional legal profession has been missing out on for decades stand to make a mint, and their clients will be infinitely better off than they were before when they had no options on the table. If you want an example of what this could look like in practice, take a look at my interview with DoNotPay.com’s CEO Josh Browder, who has developed the “world’s first robot lawyer” for consumers who have never been able to afford legal representation. Imagine a model like that with actual lawyers or perhaps LPs assisting consumers. It’s not difficult to imagine ABS’s utilizing a combination of technology and traditional lawyers to serve clients.

Likewise, I also don’t see there being a huge new competitive crush at the upper echelons of Biglaw. The major nonfirm players such as the Big Four accounting firms and the alternative legal service providers like Axiom have already been making advances on Biglaw’s turf. While lawyers like to point to the Big Four as the reason to fear changes like those in Arizona, most fail to note or understand that Sarbanes-Oxley prohibits accounting firms from providing certain legal services to auditing clients. So while the Big Four may try to make a play for their nonauditing clients, they will not have the ability to take wholesale chunks out of the legal market without doing the same type of marketing and business development as law firms. Yes, traditional law firms will have more competition, but it will be more of a level playing field than many expect.

While the fear of the Big Four may be overblown, one area that may be directly impacted by the rules is executive-level compensation. While traditional businesses can offer equity as an incentive to management recruits, law firms have historically been barred from doing that under the anti-fee-sharing rules. Firms have therefore been disadvantaged in efforts to attract a deep pool of nonattorney talent to their management ranks. With those rules vanishing at the start of 2021, Arizona-only firms suddenly have a new suite of incentives to offer the MBAs and CEOs they need to run the business side of their practices. Firms that invest wisely in management talent may find themselves well positioned in the coming years. Less clear at this point is what, if anything, firms with multistate presence can do on this or any other issue impacted by the rules.

While those may be the first areas to see major change in light of these reforms, they won’t be the last. While LPs and ABS’s may start out experimenting on the edges of the current legal industry, as they mature, I fully expect them to begin eating into traditional law’s market share. 2021’s scrappy newcomers may end up 2030’s 500-pound gorillas.

A Bang Or A Whimper?

That said, maybe the excitement and trepidation over these rule changes is overstated on both sides. The UK deregulated its rules on law firm ownership over a decade ago, and the UK lawyers I’ve spoken about it to have responded that the change had less of an impact on the market than many thought.

James Knight, CEO of Keystone Law, a publicly traded law firm in the UK, told me in an interview earlier this year that “most law firms don’t need money for growth or to develop … if equity is sold off to investors then there’s less money to be shared amongst the partners.”

Similarly, John Croft, President of the UK-based ALSP Elevate, was also dismissive of the sky-is-falling crowd when I spoke with him several months ago. “A few years ago, all the headlines started saying ‘Look out, technology and AI are going to take your jobs.’ And that’s not the case … If you’re running an efficient business, this shouldn’t scare you at all.”

“If you’re not,” Croft continued, “maybe it should.”

Even if these changes do lead to a sea change in legal services, all is not lost for traditional lawyers by any stretch. This new challenge may be just the jump-start our industry needs to catch up to the larger business world.

We’ve long been the only game in town for legal services, and we believed we were the best ones to do the job. Time to put our money where our mouths are.


James Goodnow is the CEO and managing partner of NLJ 250 firm Fennemore Craig. At age 36, he became the youngest known chief executive of a large law firm in the U.S. He holds his JD from Harvard Law School and dual business management certificates from MIT. He’s currently attending the Cambridge University Judge Business School (U.K.), where he’s working toward a master’s degree in entrepreneurship. James is the co-author of Motivating Millennials, which hit number one on Amazon in the business management new release category. As a practitioner, he and his colleagues created and run a tech-based plaintiffs’ practice and business model. You can connect with James on Twitter (@JamesGoodnow) or by emailing him at James@JamesGoodnow.com.

Commerz, Deutsche Money Management Arm Fire Auditor In Case They Decide To Sue It

It’s Time To Regulate The Internet… But Thoughtfully

The internet policy world is headed for change, and the change that’s coming isn’t just a matter of more regulations but, rather, involves an evolution in how we think about communications technologies. The most successful businesses operating at what we have, up until now, called the internet’s “edge” are going to be treated like infrastructure more and more. What’s ahead is not exactly the “break them up” plan of the 2019 Presidential campaign of Senator Warren, but something a bit different. It’s a positive vision of government intervention to generate an evolution in our communications infrastructure to ensure a level playing field for competition; meaningful choices for end users; and responsibility, transparency, and accountability for the companies that provide economically and socially valuable platforms and services.

We’ve seen evolutions in our communications infrastructure a few times before: first, when the telephone network became infrastructure for the internet protocol stack; again when the internet protocol stack became infrastructure for the World Wide Web; and then again when the Web became infrastructure on which key “edge” services like search and social media were built. Now, these edge services themselves are becoming infrastructure. And as a consequence, they will increasingly be regulated.

Throughout its history, the “edge” of the internet sector has – for the most part – always enjoyed a light regulatory yoke, particularly in the United States. Many treated the lack of oversight as a matter of design, or even as necessarily inherent, given the differences between the timetables and processes of technology innovation and legislation. From John Perry Barlow’s infamous “Declaration of the Independence of Cyberspace” to Frank Easterbrook’s “Cyberspace and the Law of the Horse” to Larry Lessig’s “Code is law,” an entire generation of thinkers were inculcated in the belief that the internet was too complex to regulate directly (or too critical, too fragile, or, well, too “something”).

We didn’t need regulatory change to catalyze the prior iterations of the internet’s evolution. The phone network was already regulated as a common carrier service, creating ample opportunity for edge innovation. And the IP stack and the Web were built as fully open standards, structurally designed to prevent the emergence of vertical monopolies and gatekeeping behavior. In contrast, from the get-go, today’s “edge” services have been dominated by private sector companies, a formula that has arguably helped contribute to their steady innovation and growth. At the same time, limited government intervention results in limited opportunity to address the diverse harms facing internet users and competing businesses.

As the cover of the November 17, 2019 New York Times magazine so well illustrated the internet of today is no utopia. I won’t try to summarize the challenges, but I’ll direct anyone interested in unpacking them to my former employer Mozilla’s Internet Health Report as a starting point. We are due for another evolution of the internet, but in contrast to prior iterations, the market isn’t set up for change on its own – we need government action to force the issue.

I’m not alone in observing that the internet regulatory tide has turned. Governments are no longer bystanders. We are witnessing an inexorable rise in intervention. This is scary to many people: private companies operating in the sector worried about new costs and changes, academics and think tanks who celebrate the anti-regulatory approach we’ve had thus far, and human rights advocates concerned about future risks to speech and other freedoms. The internet has been an incredible socioeconomic engine, and continuing the benefits it brings requires preserving its fundamental good characteristics.

While new laws are not without risk of harm, further regulatory change today seems both necessary and inevitable. The open question is whether the effect will be, on balance, good or bad. If these imminent changes are done well, the power of government oversight will be harnessed to increase accountability and meaningful transparency, promote openness and interoperability, and center the future on user agency and empowerment to help make markets work to their fullest. If on the other hand these changes are done poorly, we risk, among other undesirable outcomes, reinforcing the status quo of centralized power, barriers to entry and growth, and business models that don’t empower users but instead subject them to ever-worsening garbage.

I’m an optimist; I think we’re on a course to make the internet better through good government intervention. From my perspective, we can already see the framework of the future comprehensive internet regulation that is to come, for better or for worse. Think of it as the Internet Communications Act of 2024, to use a U.S. naming convention; or the General Internet Sector Regulation, following the E.U. style. Advocates for a better internet can either sit on the sidelines as these developments continue, decrying the (legitimate) risks and concerns; or they can get into the mix, put forward some good ideas, and build strategies and coalitions to help shape the outcome so that it best serves the public’s interest.

Where are the key policy fights taking place? Geographically, over the past few years, we’ve seen the center of internet policy shift from Washington D.C. to Brussels, and that’s where we can see the future emerging most clearly today. The GDPR illustrates this shift, as despite its imperfections, it established a new paradigm for data protection that has been echoed in Kenya and California, with more to come.

This isn’t just a story about Europe, or about privacy, though. Competition reform is racing forward with major investigations and reports around the world; the United Kingdom has done perhaps the most work here, with its eye-opening Final Report of July 2020 (all 437 pages and 27 appendices of it!). Many countries are undertaking antitrust investigations of specific companies or reevaluating the modern day fitness of their competition legal frameworks.

Meanwhile social media companies and, more broadly, internet companies as intermediaries for user communications online, have come under fire all around the world, with Pakistan and India making some of the most aggressive moves so far. The European Union is advancing its own comprehensive regulatory vision for online content through the Digital Services Act, just as the United States is reevaluating its historical intermediary liability safe harbor, Section 230.

In the United States, we’re seeing a moment that bears many similarities to the late 1960s in the buildup to the Clean Air Act of 1970. That law had powerful bipartisan support, and commensurate industry opposition. Just as with those early climate political wars, advocates for reform are facing the weaponization of uncertainty as a tactic to resist government intervention, with the abuse of data and science and metrics to advocate for an outcome of inaction. As with climate change, inaction to address the harms presented by the internet ecosystem today is itself is a policy choice, and it’s the wrong one for the future health of the internet. I believe change will come though, and as with the Clean Air Act, eventually we’ll look back and appreciate the sea change we made by intervening at a critical moment. (Sorry, that pun was mostly inadvertent – and, in fact, a bit unfortunate given the current state of play of climate politics and the climate crisis… but that’s a piece for another author, another day.)

Considering that the Clean Air Act established the Environmental Protection Agency, perhaps in the U.S. we need what Harold Feld and his colleagues at Public Knowledge have been calling for in the Digital Platform Act, establishing something akin to an Internet Protection Agency. Or perhaps, as I’ve supported in the past, we need a revamped Federal Trade Commission with greater authority, building on that agency’s success at integrating technologists into its consumer protection work. Increasingly, I’m inclined towards the idea that what we need is an expanded Federal Communications Commission, given that agency’s relatively broad authority (no matter how circumscribed by the current leadership) and the nature of this evolution as advancing what feels like modern day communications infrastructure. The United Kingdom has decided to go in this direction for content regulation, for example, appointing OFCOM to manage future “duty of care” obligations for online platforms. The technologies and businesses are very different between the traditional telecom sector and the internet ecosystem, though, and substantial evolution of the regulatory model would be necessary.

Regardless of where you situate the future policy making and enforcement function within the U.S. government, we’re still at the normative development stage on these policy issues. And frankly, the internet policy world needs some new ideas for what comes next. So, over the next few posts in this series, I’m going to share a few fresh thoughts that I’ve been mulling over. Stay tuned!

It’s Time To Regulate The Internet… But Thoughtfully

More Law-Related Stories From Techdirt:

Another Florida Appeals Court Says Compelled Passcode Production Violates The Fifth Amendment
Appeals Court Says Address Mistakes On Warrants Are Mostly Harmless, Not Worth Getting Excited About
Ninth Circuit Says NSA’s Bulk Phone Records Collection Was Illegal, Most Likely Unconstitutional

An Open Letter To Incoming First-Year Associates

Dear Class of 2020 Associates,

After three years — actually 25+ years — of hard work, you’re finally beginning your legal career. Some of you will start in a new office, and some of you will be starting remotely. These are weird times, and no one can fully prepare you for the months to come within this new paradigm. But certain themes will hold true no matter what the physical set-up may be.

Fifteen years ago, I was in your shoes, starting out as a first-year associate at Cleary Gottlieb in New York City. Here are 10 of the most important takeaways I can share from my seven-plus years as a Biglaw associate and seven-plus years (and counting) as a legal recruiter:

  1. Pick your practice area intentionally and wisely, thinking ahead about where you see yourself in terms of industry, lifestyle, and geography, five, 10, and 20 years down the road.
  2. Trust that the little stuff counts more than you now know. Be responsive and organized, meet deadlines, and pay attention to detail, appreciating that no job is too menial.
  3. Take extra time — no matter how busy you are or late it is — to understand the bigger picture. Force yourself to answer the underlying “why?”s and “how?”s on every matter you work on.
  4. Request, appreciate, and work with constructive feedback.
  5. Keep up on the latest law firm and industry news, and make an effort to learn your clients’ businesses.
  6. Keep your eyes open and be the ardent guardian of your professional development.
  7. Start developing your own business plan from Day 1.
  8. Be proactive in your career planning. Don’t trust the firm and your supervisors blindly. Recognize that career planning is a continuous and thoughtful process, not a one-and-done crisis management tool.
  9. Develop a relationship with a recruiter you trust so that you understand the legal market and your options at all times.
  10. Develop authentic relationships — with partners, peer lawyers, administrative staff and janitorial staff, and in your networking efforts. Treat everyone with equal respect and positivity.

For additional tips for getting your legal career off to the best possible start, see my articles on 25 Things All Young Lawyers Should Know In Order To Not Screw Up Their Legal Careers and Lessons For Success From A Former Biglaw Associate.

I urge you to reach out to me — not just when you’re planning an imminent move, but as you’re navigating your first year, deciding on a practice area, grappling with any other professional development questions, or seeking to just open a dialogue.

I wish you all the very best of luck in your new careers. Work hard, all the while learning and taking care of yourselves, mentally and physically. It may be a sprint at times, but it’s also a marathon.

Yours sincerely,

Abby Gordon
agordon@laterallink.com


Abby Gordon

Ed. note: This is the latest installment in a series of posts from Lateral Link’s team of expert contributors. This post is by Abby Gordon, Senior Director at Lateral Link, who works with attorney candidates on law firm and in-house searches, primarily in Boston, New York, and Europe.

Prior to joining Lateral Link, Abby spent seven years as a corporate associate with Cleary Gottlieb, focusing on capital markets transactions for Latin American clients in New York and for the last five years for European clients in Paris. A native of Boston, Abby holds a J.D., cum laude, from Georgetown University Law Center and a B.A. in government and romance languages, magna cum laude, from Dartmouth College. Abby also worked with the International Rescue Committee as a Fulbright Scholar in Madrid, Spain. She is a member of the New York, Massachusetts and Maine Bars and is fluent in French and Spanish (and dabbles in Portuguese and Italian). You can view additional articles by Abby here.


Lateral Link is one of the top-rated international legal recruiting firms. With over 14 offices worldwide, Lateral Link specializes in placing attorneys at the most prestigious law firms and companies in the world. Managed by former practicing attorneys from top law schools, Lateral Link has a tradition of hiring lawyers to execute the lateral leaps of practicing attorneys. Click here to find out more about us.

Texas Bar Exam Procedures Video Is Intense

It’s not Mulan, but the other hot video release right now is the Texas Bar Exam’s procedures film prepping an unnamed bro applicant for the exam. Now that the Texas Supreme Court has casually abandoned all reason, they’re full steam ahead on their dollar store NBA bubble plan of holding the exam in-person within a hotel.

Meet our hero:

We’ll call him Norman out of some combination of Norman Bates for his authoritative shower opening skills and Norman, Oklahoma because that annoys Texans so much. Normie here is showing us everything an applicant must do before taking the test.

Does the entire minibar count as a personal item? Because we’re going to need a ruling on that.

This includes everything in the bathroom except “1 hand towel and 1 unwrapped bar of soap.” Hygiene is important!

Don’t do it dude, that’s how the Blair Witch gets you! I’m not sure why the proctors offer the casual Hitler salute but maybe that’s just a Texas thing.

Then the proctor will place a ziptie on the closet to ensure there’s no risk that the applicant can access their underwear during the test.

Whoa whoa whoa. I’ve already seen how this plays out.

Oh, that’s not what’s going on.

Or is it? By technological assistance they mostly mean “go to the bathroom” so it’s an apt symbol.

And then they’ll blow a whistle to end the exam and bring a conclusion to the thrill ride that was this video. Thank you all for joining me on this journey.

Check out the whole thing — which you have to watch on Youtube because the Board of Law Examiners disabled embeds… probably assuming this would deter Above the Law. No such luck!


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 Truth About Massive Training Costs Provided By Agents To NFL Prospects

More than 50 college football players have opted out of the Fall 2020 season. Some of those players will choose to return to their respective athletic programs in 2021 while others will hire agents and begin preparations for the 2021 NFL Draft.

Notable players who have decided to opt out of the Fall 2020 season include Georgia quarterback Jamie Newman, Virginia Tech defensive back Caleb Farley, Penn State linebacker Micah Parsons, and LSU wide receiver Ja’Marr Chase. The aforesaid individuals, other than Newman, have all already retained agents and will more than likely rely on their representatives to cover their training costs, provide a monthly stipend and offer up a handsome lump sum of cash, referred to as a “marketing advance,” that is technically supposed to be recovered by the agents over time from the marketing revenue that the players are able to generate from off-field endeavors.

Recruiting and representing these high-profile players is an expensive effort for agencies even when global pandemics are not present. This year, with the coronavirus pandemic in play and a growing number of players opting out in August and September, the price to compete for top talent has gone up for sports agents, mainly because the monthly stipend and training cost coverage are being delivered at a much earlier date.

Football insider Neil Stratton suggested that those players projected to be selected among the top 20 picks of the 2021 NFL Draft are likely to command $7,000 to $8,000 per month in the form of a stipend, a separate marketing guarantee that ranges from $150,000 to $300,000, and $30,000 to $40,000 in training expenses, which typically includes a car rental as well as room and board. These are all out-of-pocket costs that the sports agent will incur prior to ever receiving any money from the represented players.

The estimated costs obviously scale down as the players are projected to be selected later in the 2021 NFL Draft. Stratton predicted stipends of roughly $5,000 per month for players pegged at the 21st to 50th slots, a bit less than $4,000 per month for those likely to be drafted at the end of the second round through the third round, and then $1,500 to $2,000 for those who are predicted to be off the board by at least the end of the fifth round. Players selected in these areas will also be seeking marketing guarantees, but there is a big drop off in amounts they should be reasonably able to command as the projections get worse.

The one category of costs that remains rather static for any of the opt outs suggested to be drafted before the end of the fifth round of the 2021 NFL Draft is related to training. Stratton said that it is unlikely that an agent will be able to successfully convince any of these players that they deserve less than full cover for the amount of their training at the facility of their choice, which ultimately will end up running at least $30,000 throughout the duration of the experience.

The little-known fact is that all of these pre-Draft expenses, but for the marketing guarantee, are typically not recoverable by agents, and agents are known to often neglect requiring the marketing guarantee to be reimbursed so long as the players remain signed to the parties’ Standard Representation Agreement (SRA).

If an agent brings a dispute against a player for reimbursement of these expenses, which only occurs when a player leaves the agent (a somewhat common practice), then the agent will have the burden to prove entitlement to reimbursement. The general rule is that, if a player pays the agent the agent’s commission on the NFL team deal negotiated by the agent, then the agent is not entitled to recapturing out-of-pocket costs, including those training costs that the player may have contractually agreed to reimburse in the case that the player terminates the SRA. The justification for this precedent is that it would be tantamount to a double payment that does not comport with notions of justice and equity. A rare exception to the general rule is when there are unusual or extenuating circumstances (such as the representation of an undrafted player and/or a relatively new agent involved in the transaction), and the precedent established within the NFL Players Association arbitration system is controlling on that issue as well.

The vast majority (if not all) of the college football players opting out and selecting agents will be drafted, and drafted quite high. The agents who sign these players are extremely unlikely to be classified as inexperienced. As such, it is much more likely than not that, as long as the players pay their agents the commissions they will be entitled to for negotiating their forthcoming rookie deals (assuming the players do not switch agents prior to such negotiations), these agents will never receive a reimbursement for the training costs and stipends they lay out for these players leading up to the 2021 NFL Draft. Chalk it up to being the cost of doing business in a cutthroat industry.


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.

Allegedly Sexual Deviant Crispin Odey Definitely A Racist, Ghoul

Morning Docket: 09.04.20

(Photo by Michael Loccisano/Getty)

* A judge has ruled that Kanye West will not appear on the presidential ballot in Virginia. Maybe Kanye had his attention on West Virginia anyways… [Hill]

* A former doctor has been convicted of attempted murder for purportedly trying to kill a lawyer who opposed the doctor in two lawsuits. [ABA Journal]

* A Loyola University law student is accused of torching his New Orleans apartment after a heated dispute with her landlord. [Times-Picuyane]

* A disbarred New York lawyer has been charged for allegedly stealing money meant for 9/11 first responders. [New York Law Journal]

* A New Jersey lawyer has been charged with fraudulently obtaining $9 million in COVID-19 relief money and using the funds to buy a mansion and other luxury items. [New Jersey Law Journal]

* The top lawyer for an online retailer has pleaded guilty to stealing around $6 million from his company and used the money to fund his lavish lifestyle. Lots of lawyers behaving badly in the Morning Docket today! [New York Daily 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.