Category: News Feeds

A while back, we mentioned that Seyfarth found itself in a malpractice suit with a bankrupt restaurant over blown deadlines that the restaurant says prejudiced its position. Well, that case is still going and now Seyfarth is going to produce a 30(b)(6) witness to testify about its relationship with the now terminated partner, Ralph Berman, at the center of it all.

To recap, Blue Dog was a planned NY restaurant that entered bankruptcy and hired Seyfarth as its special litigation counsel in a suit against the landlord who allegedly frustrated efforts to open the restaurant and was looking to repossess the space. Then things got twisty. The deadline for expert reports got blown and Blue Dog ended up without expert testimony backing its claims. Seyfarth negotiated a settlement at mediation but that fell apart and Blue Dog sued for malpractice. Seyfarth countered, alleging that Blue Dog was taking bad advice from a lawyer disbarred as part of the Pennsylvania “kids for cash” scheme.

But now discovery seems to have turned up an email from within Seyfarth saying that Berman needed to be removed from his cases because he was doing harm to clients. This email is attached to a proposed amended complaint that looks to be under seal, but it’s discussed in a July hearing and… doesn’t sound good! Notably absent from any staffing shuffle that Berman’s supervisors were talking about was the Blue Dog file, which Blue Dog’s attorneys see as a red flag:

Instead, they kept this entirely secret from Blue Dog. Blue Dog had no idea that the supervising partner and that the group head for litigation in the New York office were having a discussion regarding this danger presented by the lawyer assigned as lead counsel to this case. And that’s information that a client is entitled to know. That’s information that any client would want to know and would expect to be told, and Seyfarth chose, knowingly, to withhold that information.

YES, THAT DOES SEEM LIKE A PROBLEM! Seyfarth’s attorneys from MoFo characterize this as an email sent out of frustration, which doesn’t really make it better. Coupled with testimony from Berman about having a history of deadline problems and admitting that it had come up with his partners, Blue Dog sought 30(b)(6) testimony from Seyfarth on exactly what the firm was thinking about Berman: the complaints or disciplinary actions taken against him and whether he was ever actually transitioned off of other matters.

Other potential topics are getting converted into interrogatories — like the question of whether Berman was let go as part of a layoff or specifically fired — or the subject of stipulations — such as the firm admitting that they had not committed any ethics oversight in the New York office at the time. But even though Blue Dog got pushback on a number of discovery fronts, this 30(b)(6) deposition feels like a doozy. A Biglaw firm is going to have to produce someone to testify about the firm’s handling of client and internal complaints against a former partner. Playing it out in my head, it’s unclear how this works out in Seyfarth’s favor either way. The firm either had amassed a number complaints against this partner and let him work the case anyway or they hadn’t formally compiled a record despite two senior partners casually characterizing him as a threat to clients. That doesn’t necessarily mean Seyfarth ends up on the hook for the massive malpractice case, but it doesn’t put them in a great position going forward.

It’s going to be an interesting few weeks in this matter, but regardless of what happens in this case specifically, now would be a good time for firms to consider what protocols they have in place for supervising their partners to avoid this kind of mess.

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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.

A Biglaw firm is, well, big. And that means that, as much as we like to talk about a singular culture or politics, there are actually a bunch of divergent opinions within the firm. And sometimes, those disagreements become public.

That’s what happened at Perkins Coie. An email from partner Marc Elias, chair of the firm’s Political Law Group, is making the rounds for the way it calls out a former partner of the firm, Eric Miller. Miller left the firm in 2019 to take a seat on the Ninth Circuit. But, as with many Trump judicial nominees, it was not a smooth process.

Miller made history by being the first circuit court judge confirmed without the consent of the senators from his home state, known as blue slips. This led to some frankly accurate concerns about the increasingly partisan nature of the federal judiciary. And in a recent decision, those chickens have come home to roost.

In the decision, Miller wrote for a 2-1 majority (both judges in the majority were Trump appointees) overturning the district court’s injunction which banned federal law enforcement agents in Portland from forcing journalists and legal observers off the scene of protests. Though the case is ongoing, the ACLU’s lead attorney on the matter, Matthew Borden, said, “We disagree with the court’s order, which is only temporary and not the final word. We look forward to having a chance to brief the issue on the merits.” There were many who took issue with the decision.

Like Elias.

The case has particular meaning for Perkins Coie, as the trial judge Michael Simon is a firm alum as is the dissenting judge in the Ninth Circuit’s decision, Margaret McKeown. But, as Elias notes, there’s a particular infamy in having the firm associated with this decision. In his email he says:

[A]s lawyers, we take a unique pride in seeing our own out on the black robes of justice — where they meet the highest calling of our profession.

A decision from the 9th Circuit this week shows the best and worst of what we as a firm, have given in this regard.

And Elias isn’t above some well placed “I told you so’s” now that such a problematic decision is out there:

Why am I sending this email — because all too often we assume that because we know someone personally or professionally that they share our values. It is too easily [sic] to celebrate our firm’s “successes” regardless of the price on society.

On the day Eric Miller was confirmed, I sent an email to management that read:

No doubt you have seen the news that Eric Miller has been confirmed to the 9th Circuit over the objection of the entire Democratic caucus and in violation of ling standing rules regarding “blue slips” and home state senators (one of whom is running for president and an important client). I would asl that the firm avoid any display of support or pride in Miller’s elevation. It is, for my group at least, a source of deep embarrassment and sadness.

He is gone from the firm, or will be shortly, and we should leave it at that. I do not wish to debate him or whether he is “nice.” It is enough that his elevation is an affront to our many clients, and he will now vote as a judge against civil rights, voting rights, gay rights, women’s rights, immigrant rights and will otherwise seek to harm the most vulnerable in society. I ask that we not compound this by acting as if this is a point of pride or happiness for the firm.

My request was not granted. Miller was feted by many at the firm, including many on this email, who now stand in horror at his ruling in Portland.

I stand by those words today. Actions and inactions have consequences..

Black Lives Matter.
Marc

Now Elias’s politics are literally part of his practice, and a long line of Democratic politicos call him their attorney, so he has more freedom in voicing his opinions, as they’re shared by many of his clients. But it is still refreshing to see a Biglaw partner call out the hypocrisy of the firm. We know that a firm’s pretty words on social justice matters can often ring hollow to those who’ve actually worked at the firm. Good for Elias for pointing out the cognitive dissidence needed to celebrate Miller’s elevation, then a year later be shocked at the decision you knew — or at least should have known — he’d make.

Read Elias’s full email on the next page.

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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).

It’s been about six months since law firms closed their office doors in favor of using work-from-home policies as a way to prevent employees from becoming infected with COVID-19, the deadly virus that’s plagued the globe for nearly all of 2020. Almost 6 million people in the U.S. have been infected with the coronavirus, and more than 180,000 people have died. Although cases continue to surge, many firms are pushing to reopen and get back to work in person.

Other firms are going another route entirely.

Back in March, Reed Smith — which raked in $1,246,926,000 in 2019 gross revenue, making it 26th on the Am Law 100 ranking — made waves as the first firm to institute a mandatory work-from-home policy. The firm previously made four rounds of salary reductions for partners, associates, and staff, and fresh off reports that those cuts would be reduced for almost all employees, Reed Smith is making news again.

We’ve learned that Reed Smith will extend its work-from-home policy for all U.S. employees for at least the rest of the year and into the first month of 2021. Here’s a statement from the firm on its decision to remain remote for the next several months:

As the first law firm to move to remote working across our global platform, we are proud of the early action we took in March to protect the health and wellbeing of our personnel and our communities. We have now made a decision to extend our remote-work period for US personnel until at least January 2021. We hope this certainty will help our people as they make plans for the rest of the year.

In some US offices, under strict guidelines, lawyers can request to work from an office. In EMEA, some of our offices have partially returned to work, when safe and appropriate. More than 90% of Reed Smith lawyers and professional staff continue to log in remotely each work week. We are serving our clients well without skipping a beat and will continue to do that remotely into 2021 in light of the extraordinary circumstances of the pandemic.

Reed Smith is the first firm we know of to announce that it will remain remote for the rest of 2020. Some may be sick of working from home, but for others, this decision offers a little security during these uncertain times in that employees won’t have to worry about potentially getting infected with COVID-19 while at work.

Will your law firm follow in Reed Smith’s footsteps? Please get in touch with us via email or text — tips@abovethelaw.com or (646) 820-8477) — and let us know. This could be a brand new Biglaw trend in the making.

Earlier: Biglaw Firm Institutes Mandatory Work-From-Home Policy To Protect Personnel From Coronavirus

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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.

This issue is a big deal, but one that comes as little surprise to those following subject.  As you may have already heard, the Court of Justice of the European Union (ECJ) recently ruled that the current data transfer agreement between the European Union and the United States known as the “Privacy Shield” did not provide adequate protections for the data of EU citizens when such data is transferred to the United States. That’s right — barely four years old, the Privacy Shield in its current form is dead. This is not the first rodeo when it comes to United States-European Union data-transfer harmonization, but the recent ECJ ruling definitely acts as a second strike and does not bode well for an easy fix to an already complicated situation.

Some necessary background will help provide some understanding why this is a big deal. As I have written here before,  there is no comprehensive federal statutory approach in the United States to the privacy of personal information. Such information can be collected without the specific consent of the individual at the outset, subject to specific notice, consent, onward transfer, and other requirements after the fact. The European Union has taken a different approach — it acknowledges that “personal data” is owned by the individual, and the individual must provide informed consent to the use of such personal data. Without getting into the weeds here, suffice it to say that the EU’s focus on the individual resulted in the passage of Directive 95/46/EC (Data Privacy Directive) to protect individuals in the processing of their personal data and and the “free movement of personal data” within the European Union and the European Economic Area (EEA). Simply put, the European Union and United States took different approaches to personal data privacy, causing problems in personal data flow from the European Union to the United States. As a result, the cross-border data flow of personal information from the European Union to the United States needed to be “harmonized.”

The first attempt at this “harmonization”  was the International Safe Harbor Privacy Principles developed in the late 1990s to create a framework for private organizations regarding the handling of personal data within the European Union, Switzerland, and the United States to protect it from improper disclosure or loss.  This resulted in the U.S. Department of Commerce’s “Safe Harbor” — a way for U.S. companies to “opt-in”  and self-certify that they adhered to these principles (as well as 15 frequently asked questions and answers per the Directive), thereby providing “adequate assurances” concerning the privacy of such personal information. Even though the European Commission ruled in favor of the Safe Harbor in 2000, the Safe Harbor was overturned in 2015 in a case brought before the ECJ, in no small part due to the Snowden revelations regarding NSA surveillance and its access to vast amounts of private data in contravention of the International Safe Harbor Privacy Principles.

Following this decision, U.S. companies started relying on standard contractual clauses (SCCs) and binding corporate rules (BCRs) approved by the European Commission to govern such data transfers. Then the General Data Protection Regulation (GDPR) was passed in 2016 as a long-needed update to the Data Privacy Directive, with an effective date slated for May 2018. In the midst of all this, the European Commission and the United States came up with the Privacy Shield to improve data protection for trans-border flows of personal information from EU citizens to the United States post-Safe Harbor.  The EU-U.S. (and Swiss-U.S.) frameworks for Privacy Shield “were designed by the U.S. Department of Commerce, and the European Commission and Swiss Administration, respectively, to provide companies on both sides of the Atlantic with a mechanism to comply with data protection requirements when transferring personal data from the European Union and Switzerland to the United States in support of transatlantic commerce.”  The European Commission held this framework to be “adequate” so as to permit trans-border flow of personal data from the European Union to the United States (with the Swiss government following suit in January 2017). Fast forward to 2020 (with the GDPR now effective), and  low and behold, the Privacy Shield is struck down by the ECJ, invalidating the Privacy Shield framework as inadequate (i.e., it’s Safe Harbor under another name) with no grace period to wind-down. In a way, it’s déjà vu all over again.

Please forgive the blatant skeleton timeline above, but it provides an important contextual point — trans-border flow of personal data from the European Union to the United States has a long history, and not a simple one. U.S. companies now no longer enjoy the streamlined approach for such transfers afforded by the original Safe Harbor and the now-invalid Privacy Shield. Why does this matter? This affects not only large service providers (such as Google) and  social media sites (such as Facebook) used worldwide, but many U.S. companies doing business internationally with the EU and EEA. With the GDPR regulatory requirements now in place concerning the transfer of “personal data” from EU “data subjects” to data controllers and data processors outside the EU, this issue is one U.S. companies cannot ignore.

Thankfully, all is not lost. Here is some food for thought:

Needless to say, the above bullets are not exhaustive, and there is a lot to think about here, especially in light of GDPR compliance. Hopefully, the Department of Commerce with work with the European Union for a viable new framework post-haste. No question about it — the home team is down by a run with bases loaded in the bottom of the 9th inning, with two outs and the batter already has two strikes against him. Whether the next pitch is a hit or a strike out remains to be seen. For the sake of U.S. companies, let’s hope it’s the former.

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Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

You work somewhere for 20 years. You quit. All of a sudden, you’re not sure the joint was that good, after all.

You work somewhere for 20 years. They fire you. All of a sudden, you’re absolutely sure the place was terrible all along.

The basis of some counterclaims is obvious: Maybe you actually wronged the other party. That would be a good reason for the other party to sue you.

Or maybe you have a 100-page, single-spaced contract, and both parties are obligated to do many things for the other. If you sue them, they’ll sue you back. That’s the way it works.

But human nature may reveal the less obvious bases for counterclaims.

Fire someone.

All of a sudden, that person is likely to realize that your joint engaged in rampant discrimination against the former employee’s protected class.

Fire someone.

If the person isn’t a member of a protected class, then the person will suddenly realize that people at your joint routinely violated the law, or breached the rules of ethics, or otherwise acted improperly.

It really doesn’t matter that the employee never mentioned ethics problems during the 20 years they worked for you.

I’m not talking about reality here; I’m talking about human nature.

File a collection action.

You’re about to get sued for malpractice.

I don’t care if the client seemed happy during your five-year retention. The client is about to become very unhappy with the work you did.

I’m not limiting my analysis to individuals. Have a corporation decide to eliminate someone’s job as a result of a reorganization. All of a sudden, everyone will start criticizing the eliminated employee’s performance. It doesn’t matter that this is a position elimination, and performance is irrelevant. It doesn’t matter that the employee always received a performance rating of “3,” suggesting that the employee’s performance was satisfactory. If the employee’s position has been eliminated, then the employee was no good. It’s human nature.

Consider the partner who leaves your law firm and goes to work for a competitor. Before the office door has swung shut, your colleagues will be scoffing: “Jarndyce — he was never any good anyway. I’m delighted he left.” (Others may be silently thinking: “Gee, I’m old enough to remember when Jarndyce was a good lawyer.” But they’ll never have the courage to speak up.)

When you’re considering the possibility of counterclaims, think about human nature.

Some counterclaims are based on the law, but many are based on primal instincts. Either way, you’ll have to pay for your defense.

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Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

For two years, Dan Kamensky waged a grueling and bitter war against Neiman Marcus owners Ares Management and the Canadian Pension Plan Investment Board. The Marble Ridge Capital chief lambasted them for attempting to screw over unsecured creditors by spinning off its MyTheresa e-commerce business. The whole thing certainly got quite nasty at times. And then, when Neiman was at its lowest, in bankruptcy and accused of default by Deutsche Bank of all counterparties, Kamensky turned the screws, forcing Ares and CPPIB to give up some of their stake in MyTheresa to make exiting bankruptcy possible.

* A music composer for The Simpsons can move forward with his lawsuit over being dismissed from the show. Maybe his response when he heard the news was “Woo Hoo!” [Yahoo News]

* A lawyer for the alleged Kenosha shooter claims his client was acting in self defense. [New York Post]

* Ghislaine Mawell, a former associate of Jeffrey Epstein, is allegedly the first person in a New York City federal lockup to see a lawyer since the COVID-19 pandemic began. [Independent]

* A Georgia lawyer was shot in his right shoulder during a dispute at a real estate closing last week. [August Chronicle]

* The Estate of Leonard Cohen may take action against the RNC for using the song “Hallelujah” during fireworks after President Trump’s acceptance speech last week. [Vanity Fair]

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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.

Remember morning rush hour? Or being stuck at the office until 9:45pm on a Friday night?  While so much has changed as we’ve settled into remote work, many segments of the legal industry continue to roar as they did pre-pandemic. And the most astute, successful firms are seizing this uncertain time to add talent and bolster their teams for the future. But against this backdrop, recruiting lateral talent presents its own unique challenges in an ever-evolving hiring process. So how does interviewing in the age of Covid-19 work, and how do firms and candidates gather the necessary information about one another from six feet apart?

So 2019, No. 1:

Interviews must be held in an office and in-person.

2020? For decades, offices, hotel lobbies, and coffee shops were the primary domain for interviews. But just as Covid-19 has rewritten the rules about social norms, business practices, and government debt, so goes the interview process. Now more than ever, successful interviews are happening anywhere, anytime. Flexibility is ruling the day.

It goes without saying that the video interview has taken over, so we won’t bother with another etiquette lecture. But with so many of us working remotely, the added freedom has made interview scheduling easier than ever. Employers and candidates are genuinely embracing (or begrudgingly accepting) the new reality, often going through every step of the hiring process without an in-person meeting. Fingers crossed we don’t end up having to publish our draft post, “Zoom Crash Leads to Collapse of Modern Civilization”.

The right fit concept is deeply ingrained in our job search/hiring culture and pushes us towards personal contact. Navigating the murky waters of possible in-person meetings can be tricky for all sides involved, and of course everyone has to make decisions about their own comfort zone.

How employers and candidates deal with this issue can say a lot about them. A complete lack of flexibility from the employer could reflect other long-term aspects of their policies, so you might want to let that ship sail. On the other hand, a lack of flexibility by the candidate, especially if presenting an in-person meeting as an ultimatum for moving forward in the interview process, can be perceived as tone-deaf and result in a withdrawn offer. 

But as with the rest of life, there has been a slow return to some in-person activity. We have scheduled meetings in public parks and at outdoor cafes. The most creative location we’ve seen: “I’ll meet him in the fishing section at 3pm” — and thus a mid-level litigation associate interview with a national firm went down in a Cabela’s Sporting Goods store. 

So 2019, No. 2:

Lateral Interviewing typically follows a set process and timeline.  

2020?  There is no standard interview process or timeline. So again, be flexible! Lateral interviews are challenging, time-consuming, and nerve-rattling even under normal conditions.  While there are exceptions, we have seen more employers extend the interview process both by the number of interviews, length of time between interviews, and requiring additional writing samples, references or assurances before deciding (or declining) to extend an offer. By talking to hiring managers and partners on a daily basis, we have gained inside knowledge about the employer’s budget to hire, willingness to move quickly, and the competition under consideration for an opportunity, which is vital for making a successful placement.   

So 2019, No. 3:

Live where you work.

2020?  Work where you live (See what we did there?).  Since most attorneys are now working remotely, firms are recognizing that employees can live anywhere and still perform. One of our clients, a NYC-based boutique, opened up their lateral associate search to the entire U.S., realizing that the days of showing facetime in a Midtown office have passed. Tech companies have long realized that workers can perform remotely; law firms and in-house departments are following suit. As a former tax attorney (Jessica writing here), check with your accountant on the tax consequences of living and working from a state other than where your office is domiciled. 

Can you believe 2021 is right around the corner?

As autumn rolls in and the lock-down counter ticks into month seven, there is much reason for optimism in the lateral hiring market. Nimble firms who have mastered remote recruitment are making headline-worthy lateral hires and seeing immediate production. Those firms and companies who haven’t must follow the lead or will find themselves severely lagging when stability from Covid-19 returns. We anticipate that several positive factors will result from this challenging time, including efficiencies in lateral hiring as competition increases and the need for travel decreases.  2021 will almost certainly hold lateral options that were unthinkable in the 2019 legal industry.

As always, reach out anytime (Jessica, Daniel).  We’re happy to discuss career opportunities, commiserate over Zoom fails, or share our favorite bread recipes if you can find any flour.

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to American Lawyer’s Midlevel Associate Survey, which breaks the rankings out by specific offices, which two Kirkland & Ellis locations got top marks in their respective cities?

Hint: One office got a 4.854 out of 5 in overall satisfaction and the other, slightly less happy location got a 4.745 but still takes the number 1 spot for the city.

See the answer on the next page.