Being Married To A Lawyer Isn’t All It’s Cracked Up To Be

Does it ever get better? [My husband is] a lovely man and he earns a good salary but I’m twenty or so years in and the work never stops. I mean never. Not on holiday. Not during births. Not during house moves. …

I am getting a bit tired of being at the bottom of the priority list which appears to be: work, children (quite rightly), dog, household necessities, life admin, wife. Except by the time he gets time to focus on me he is so tired his eyes literally glaze over when we speak. I try not to take it personally.

— a lawyer’s spouse writing a rather candid post about what seems to be a one-sided marriage on Mumsnet, a UK parenting forum. While some responded with thoughtful advice, others familiar with this woman’s plight referred to it as “the nature of the beast,” and others still calling her husband a “workaholic.”


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.

Pandemic Prep: What Small Firms Need To Know To Counsel Clients Through COVID-19

One year into the COVID-19 pandemic, businesses are still dealing with complex questions related to contracts, liability, and ever-shifting guidelines from federal and local authorities. As clients look for guidance, lawyers need trusted sources of information.

In a new treatise from PLI Press, COVID-19 and Other Pandemics: Business and Legal Challenges, public health and safety regulation experts James T. O’Reilly and Philip Hagan offer background and analysis for lawyers. The first publication to address these evolving issues, the treatise combines practical advice with the latest scientific research and guidance from key government agencies.

Here are some key points for businesses – and their counsel – to consider as they wade through the challenges posed by the pandemic:

Contracts are key. If you haven’t brushed up on force majeure since law school, now is a good time to revisit this and other contract concepts. A chapter on “COVID-19, Contracts and Frustration Defenses” provides an overview of contract law for businesses who may have seen their operations interrupted by the pandemic when they, their vendors, or third parties were unable to fulfill contracts. In addition to force majeure clauses, O’Reilly and Hagan explore issues of foreseeability, and defenses to non-performance like impossibility, impracticability, and frustration of purpose.

Employers should continuously evaluate risks and liabilities in their workspaces. OSHA has provided recommendations for how businesses can evaluate the risk of COVID-19 spreading in their workplaces and design systems for preventing transmission. These include both engineering controls, such as workspace redesign and upgrades to office air filtration systems, and administrative controls, which reduce person-to-person contact through “staggered work shifts, downsizing operations, delivering services remotely, and other exposure-reducing measures.” In the treatise, O’Reilly and Hagan adapt these and other recommendations into actionable guidelines.

The book includes an overview of workplace liability claims, looking at potential employer liability for employees who contract the virus on the job. The authors discuss potential theories of liability that employers should be aware of and the evidentiary difficulties that the parties will encounter. In that context, they also dive into the complexities of contact tracing as it relates to employer liability and evidence of infection. In addition, they discuss liability risks arising not just from employees catching the virus, but from customers and other members of the public catching the virus. The authors provide an overview of certain tort concepts, an explanation of workers’ compensation programs, and once again draw on OSHA guidance, or lack thereof, and explain the interaction of these concepts with respect to employer liability.

Focus on active response. Regardless of their type of business, all employers should maintain active response plans that minimize potential COVID-19 exposures to their employees and customers, the authors say. The CDC and other government entities provide guidance that can be incorporated into business operating scenarios.

Plan for “black swans.” In other words: expect the unexpected. Now that a rare event with extreme global consequences has in fact occurred, businesses will endeavor to structure contracts and business plans with risk scenarios in mind. When counseling businesses on planning and liability, think about these “black swan” events and develop strategies accordingly.

To download a complimentary chapter of COVID-19 and Other Pandemics: Business and Legal Challenges from PLI, click here.

Visit PLI’s Coronavirus Developments page to access related webcasts and on-demand programs.

Is The Customer Always Right? Lessons On Interpreting Market Research

In 1985, the Coca-Cola Company changed the formula for their classic soft drink and released “New Coke.” The product was extremely well researched and the launch plans were meticulously developed, but “New Coke” became a storied example of a high-profile business misstep.

Why did the company develop a new formula in the first place? For context, Coca-Cola was dealing with a problem. They had been losing market share in the beverage industry for years, and blind taste tests established that even Coke loyalists preferred the taste of Pepsi. So Coca-Cola sought to create a better-tasting product. They continued their efforts using the same type of blind market research until they found a formula for a “New Coke” that was preferred over Pepsi.

Within three months of the launch of “New Coke,” the Coca-Cola Company re-introduced original Coca-Cola as “Coke Classic.” “New Coke” was given a new name (Coke II) and was ultimately discontinued. While the misstep was widely criticized, Coca-Cola was nevertheless able to recover (which is a whole other topic).

Innovators understand there are new ways to approach problems that need solving. Customer or user input is critical to the process of successful innovation, but if used or interpreted incorrectly — as the “New Coke” product launch highlights — an innovative move can go flatter than a can of soda left open overnight.

Here are some tips that can help legal professionals understand how to navigate and interpret research to increase the successful outcomes of innovation.

Interpreting Research

There are a number of ways of looking at why “New Coke” failed. In the end, the research was correct, but the interpretation of the research is where the pitfalls occurred. True, Coca-Cola had built a better product, and their customers agreed, but they did not consider how customers would respond if the tried-and-true Coca-Cola formula that was loved and revered were taken away or changed in exchange for the new offering. Things may have turned out differently if Coca-Cola had introduced “New Coke” as an additional product in the market, while continuing to make the original recipe available to consumers.

The point here is that innovators need to dig deeper to interpret the results of research. And it is also important to review a proposed solution completely with customers or users. This should include anything that is changing or that is being taken away.

Understanding Context

Another way to more effectively perform research is to ensure there is proper context. There are full systems like Contextual Design that can be leveraged to get a comprehensive understanding of your users or customers. Some less involved tips and tools can include:

Creation of Personas: Study and define a profile for a typical user. Think of it like describing a role for a casting call in a movie. You can even give them a name and describe some of their personality traits, what makes them successful in their job, their education, or any other factors that might be relevant. It is also perfectly fine to develop more than one persona, if you serve users with different traits. For example, you may have customers who prefer to talk over the phone, versus other customers who prefer to communicate via email or text. Studying and understanding the different preferences and needs of your users can help to inform which user needs and viewpoints should be evaluated and taken into account during the innovation process.

Task based context: For many problems, it is important to know what a user or customer was doing right before or right after completing a task. As an example, say your customer liked a report that you provided and wanted to share it out to other stakeholders and departments within their organization. An innovator might ask questions like:

  • What prompted you to access the report?
  • After you accessed the report, what did you do next?
  • Why do you find the report valuable?

Questions like these can help interpret user feedback on their workflow that can help identify ways that you can deliver greater value.

Who is Your Customer? Understanding Stakeholders

On the surface you may think you may be solving a problem for a particular user or customer. Let’s say the user is a senior associate in a law firm who’s supported by the firm’s knowledge management staff. The senior associate has her work reviewed by a partner. The partner advises in-house counsel, who then helps a business leader make a decision about an important acquisition. If you can get a better idea of who your user supports and how their role functions within the larger organization, it can help improve your understanding of that user’s needs, perhaps even before they know what they need. That understanding can help you define the importance of the solution you’re providing and make informed decisions about how to innovate that solution to deliver better value.

Innovators can benefit by ensuring they are properly hearing and interpreting customer or user feedback. By applying these kinds of research techniques, innovation projects are far more likely to be successful.

Finally, if you are looking for a story about customer research that resulted in the successful launch of an innovative product, then consider this article from Mental Floss about the history of the Trapper Keeper:

If anyone wonders how I developed a passion for innovation, I’m the 15-year-old son who showed his school locker to his father in the article!


Ken Crutchfield is Vice President and General Manager of Legal Markets at Wolters Kluwer Legal & Regulatory U.S., a leading provider of information, business intelligence, regulatory and legal workflow solutions. Ken has more than three decades of experience as a leader in information and software solutions across industries. He can be reached at ken.crutchfield@wolterskluwer.com.

Merrick Garland Asked To Put A Stop To Biglaw Revolving Door… He Won’t.

(Photo by Brendan Smialowski/AFP/Getty Images)

It’s a shame that the Merrick Garland confirmation hearings will be remembered for John Cornyn asking about the barely remembered Trump pee tape dossier and Mike Lee trying to school the Jewish federal judge on what anti-semitism really means, because there are some important issues facing the Department of Justice that the performative politics sideshow will overshadow. Maybe this is all a masterstroke by Biden. Any serious criticism of Neera Tanden’s OMB nomination has fallen aside as folks galvanize around the insanity that the people who voted to acquit Donald Trump weeks ago are incensed by mean Tweets all of a sudden. That one may not work out in the end, but if the administration’s whole goal is to quash substantive dissent by letting hearings get overtaken by scurrilous nonsense, it appears to be working.

Unfortunately, the Department of Justice should face a reckoning when it comes to the ongoing revolving door between Biglaw and the upper echelons of leadership. Biden’s initial leadership picks — Judge Garland, Kristen Clarke, and Vanita Gupta — all come to their new posts from outside the corporate legal superstructure. But they’re seemingly the exceptions rather than the rule.

A coalition of 37 racial, worker, environmental, and social justice organizations has sent a letter to Garland calling on him to reject “Filling the Department with corporate lawyers who profited defending powerful industries puts the fox in charge of the hen house — or at least the counsel who won the fox’s business over dozens of other attorneys.”

“If you’re a multimillionaire because you help corporations and corporate executives evade or violate the law, you should not be in charge of enforcing the law,” said Revolving Door Project Executive Director Jeff Hauser. “Lawyers at BigLaw firms, especially those with ‘government affairs’ practices, spend all day working to weaken and hamstring enforcement of white-collar criminal law, environmental law, antitrust law, and anything else which gets in the way of the biggest businesses’ bottom lines. These lawyers use tours through the Justice Department to refresh their insider knowledge, then take those insights back to corporate clients who want to dodge basic democratic accountability. It was an unacceptable practice when perpetrated under Trump, and it should have no place in the Biden administration.”

Reportedly, Garland had planned to hand leadership over antitrust efforts to a Susan Davies, who already defended Facebook against antitrust allegations. Garland said that’s not the case, but noted that, “Fortunately or unfortunately, the best antitrust lawyers in the country have some involvement” with the tech giants most deserving of antitrust inquiry.

On the one hand, I’m a believer in the old Vulcan proverb that “only Nixon could go to China” and its American legal corollary “only Joe Kennedy could make the SEC.” Putting the notorious stock market speculator in charge of writing and enforcing the rules reined in post-crash Wall Street. At a certain point, there’s expertise that can only be earned by sitting on the other side of the table.

In the reverse, lawyers exiting government service can and do use their experience to help clients skirt the system, but that’s hardly universal. I worked under a former SEC General Counsel and can vouch for the fact that his advocacy was always grounded in advising clients to do what the SEC rules expected rather than seeking out some sort of advantage. And getting it right the first time so they never had to find themselves on the wrong end of an enforcement action was the whole reason to hire him.

On the other hand, especially in enforcement roles, the temptation to pull punches to maintain employability on the back end is far too high. It’s an appearance of impropriety issue. Add in the smoothing of zeal that comes from recruiting from the ranks of people who built relationships with those they’re asked to regulate over the course of decades and there’s more than enough reason to impose a moratorium of Biglaw hiring at senior positions. As the letter states:

Rather than empower conflicted BigLaw attorneys, we urge you to instead appoint attorneys with a longstanding and consistent commitment to carrying out the missions of the divisions they will run. Public defenders running the criminal division, environmental lawyers leading the environment and natural resources division, plaintiffs attorneys running the antitrust division, and so on will produce more equitable outcomes. Alternative career paths which take attorneys outside of the fancified halls of corporate law firms better prepare them for the actual work of representing the federal government, and are statistically more likely to bring sorely-needed diversity to the Department’s halls. A Department which looks like America, including coming from life experiences similar to those of most Americans, is more likely to earn the trust of America.

Ethical rules that block people from taking clients averse to their government positions for a period of time are all well and good but they’re easily skirted and hardly long enough. Frankly, it would be ideal if we could have a shadow government structure where Biglaw attorneys interested in a post with a future administration have to depart their private sector job for a period of time before being eligible for a government position. It’s not that every private sector lawyer is corrupt, it’s that we can all do better when it comes to something as important as the Department of Justice.

But instead we’ll deal with Tucker Carlson yelling about Merrick Garland and Russiagate and just keep the revolving door twirling.

(Full letter on the next page…)

Garland Must Lock BigLaw Out Of DOJ Leadership To Enact Biden Agenda, 37 Groups Say [Revolving Door Project]


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.

This Gigantic Biglaw Firm Wants To Get Even Bigger In 2021 And Beyond

‘Your firm is HUGE!’ (Image via Getty)

What’s next for your law firm when it’s already one of the most profitable in America, one of the highest grossing in the world, and one of the biggest on the planet? If you’re the global co-chair of DLA Piper, a Biglaw firm that handily ticks off each of those accomplishments, the answer is do even better by getting even bigger.

In a wide-ranging interview with Bloomberg that touched on everything from office life in a post-COVID world to diversity and inclusion, DLA’s Frank Ryan said he wants the firm to be able to provide “full-service” to all of its clients while at the same time working on high-end projects.

Growing revenue by taking market share is how Ryan said he will measure the firm’s success.

“The real opportunity for us is to drive that top revenue line, and to really build business,” Ryan said, adding, “We want to fight for more work.” …

Last year, he said the firm’s U.S. business grew revenue and profits per equity partner in the high single digits.

With about 90 offices in more than 40 countries and roughly 4,500 lawyers, the firm’s $3,112,130,000 gross revenue in 2019 is just the beginning. “For us, the theme of 2021 is unlocking value in the institution: breaking down walls and building teams to compete for the best work around the world,” Ryan said. That means associates at the firm should get ready for more work — and more varied kinds of work — in the future.

Will other Biglaw firms follow DLA Piper’s intrepid new strategy for success in 2021?

DLA Piper’s New Chair Wants His Giant Firm to Get Even Bigger [Bloomberg]


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.

Ray Dalio Makes Himself Vice President Of The Bridgewater Senate

For a full decade now, Bridgewater Associates has been writing its “Book of the Future,” and not just the one that involves creating a robotic Ray Dalio that will, after the Singularity, run Bridgewater Associates as a kind of closed system, accumulating capital as a matter of principle rather than on behalf of any living things, who will of course no longer have anything to add. Until then, however, law and practicality dictate that human beings run hedge funds, and Ray Dalio is 71 and will not be able to do so forever. And that requires succession planning which, even when done in accordance with Principles, is apparently not easy, given the number that have come and gone over the years with more or less fuss.

Of Quashing And Quibi

Back in June of last year, I highlighted the then-nascent patent and trade secret dispute involving streaming video technology purveyors Eko and Quibi. While Quibi’s attempt to become the Netflix of streamed “short-bite” mobile entertainment proved unsuccessful, its IP dispute with Eko is still kicking in earnest. While I could fill a column just going through the various and sundry filings (including the predicted Quibi IPRs) and counterfilings between the parties, at this point in the process the more interesting battle regards Quibi’s subpoena directed to Eko’s high-profile investor cum litigation financier, billion-dollar plus hedge fund Elliott Management. To date, Quibi’s attempts to get discovery from Elliott have been frustrated at every turn, with Elliott moving to quash the SDNY-issued subpoena seeking information into its knowledge as a publicly-disclosed investor in the lawsuit against Quibi.

Elliott’s motion to quash Quibi’s subpoena had a brief sojourn in the SDNY, before being transferred in late January to the Central District of California (where the underlying litigations between Eko and Quibi are pending) for adjudication. In early February, the CDCA’s Magistrate Judge Kim ordered Quibi to respond to the motion to quash within 10 business days, with Elliott getting five days to file an optional reply to Quibi’s opposition, before the motion would be deemed submitted for decision. As ordered, Quibi filed its opposition on February 18. And a doozy it is, going right to the heart of the significant questions raised when an outside investor takes a position in an IP dispute between two litigants. Because the disposition of this motion could have ramifications for discovery into litigation funding arrangements in patent cases, it is definitely a situation that litigation funders, IP lawyers, and their clients should be monitoring.

While the popular media, such as Variety, have focused on the more salacious question of whether Elliott’s investment in Eko was motivated in part or whole by romantic concerns involving Elliott’s founder, that aspect is less deserving of focus for our purposes. In my view, the motivation of a litigation funder is less important than the impact their investment has on the conduct of the case. As I pointed out in my June column on these pages — and as quoted by Quibi’s counsel in their opposition brief — the main impact of Elliott’s funding is that it has allowed Eko to litigate as if cost were no object.

But even accepting that as true, even that fact is probably less important to Quibi and the public interest as the question of whether the presence of Elliott’s funding means that settlement runs through Elliott’s boardroom table, or whether Eko’s $100 million-plus reasonable royalty demand was in part influenced by the need to generate a big return for the litigation funders. In my view, therefore, in the majority of cases the more salient focus should be on the consequences of the investment by a litigation funder, rather than the motivation behind the grant of that funding.

In its opposition, Quibi weaves in the merits of the litigation itself as a reason to grant discovery into the funding arrangement. In numerous places it highlights the incremental successes on the merits it has achieved thus far, while pointing out that the core aspects of Eko’s trade secret case remain unproven — all in the service of an effort to establish that the substance of communications between Eko and Elliott on the merits of the IP claims are relevant. Likewise, Quibi reinforces the unusually aggressive nature of Eko’s damages claim as a basis for establishing relevance concerning any valuation efforts undertaken by Elliott as part of its investment process. Quibi notes that it could use information generated by Elliott as to case valuation as impeachment fodder for Eko’s damages expert, on top of the need to refute any attempt by Eko to establish a David v. Goliath narrative at trial. (Though the likelihood of Eko taking that approach probably dropped precipitously once Quibi’s core business effort folded.)

Another interesting line of attack used by Quibi — one that I would expect to see other patent defendants pursue over time, especially if Quibi’s argument resonates with the magistrate judge — revolves around Elliott’s potential exposure as a litigation funder to an attorney’s fees award to Quibi. (In the past, I have mentioned that one of the compelling reasons for a patent owner to submit their claims to the rigorous diligence employed by litigation funders is as a form (albeit untested) of attorney’s fees insurance.) Since attorney’s fees can often be grounded in litigation misconduct, Quibi’s brief notes that to the extent Elliott is “driving” the litigation tactics espoused by Eko, it could be liable for attorney’s fees on that basis. Furthermore, Quibi argues that the speculation that Elliott may be exercising settlement control also warrants discovery, while also pointing out that Elliott’s belated identification of its pecuniary interest in the cases justifies further exploration. Finally, Quibi notes the potential standing impacts of Elliott’s investment, a fontanelle overlaying litigation funding arrangements that I expect sophisticated defendants to press on with vigor going forward.

While full of interesting arguments, it is hard to consider Quibi’s opposition a slam dunk to succeed. Yes, certain courts have been loath to grant discovery into litigation funding arrangements — even when those arrangements were deemed relevant without reservation — due to work product concerns. At the same time, all Quibi needs is a sympathetic ear from the magistrate judge to get a crack at Elliott. To that end, Quibi does its utmost to declare that “Elliott’s relationship with Eko is a business relationship, not a legal one.” Whether the magistrate judge agrees will go a long way to either reinforcing the current understanding that litigation funding arrangements are very hard to get discovery on, or in giving proponents of such discovery a high-profile example to seize on. Quibi’s business ambitions may have been quashed, but it is doing its best to make sure its discovery requests don’t suffer the same fate.

N.B. While I am flattered that Quibi’s legal team saw fit to include excerpts of my frank and objective commentary on this case in their brief, they did so solely on their own volition and without my knowledge or endorsement. To be clear, I have no problem with them doing so, as there is a limited universe of legal commentary on ongoing IP cases to draw from when trying to illustrate a media perspective on a dispute. But I also recognize the power of this platform to call attention to aspects of ongoing cases that would perhaps normally evade scrutiny or commentary, which is why I do my utmost to present these columns in as neutral and forward-looking manner as possible. At bottom, I like to think this column offers a unique perspective on the IP happenings of the day and to the extent it serves to advance the dialogue on issues important to the IP community, all the better. Thanks as always for reading along.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.


Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

Is Your Firm Keeping Pace With Cloud-Based eDiscovery?

Organizations that adopt cloud-based eDiscovery identify key information quickly amid what can often be chaotic and expansive document sets. 

These platforms promote seamless collaboration, optimize efficiencies across workflows, and provide better control and higher data security.

In partnership with our friends at the leading eDiscovery provider Everlaw, we’re fielding a brief survey to gain insight into how law firms are implementing and utilizing their eDiscovery platforms — whether in the cloud or on premise. 

Click here to take the survey and see how your eDiscovery systems are keeping pace. 

New California College Sports Bill Would Actually Hurt Schools In The State

Do the college athlete name, image, and likeness laws in California, Florida, Colorado, Nebraska, New Jersey, and Michigan go far enough? They are intended to provide all college athletes with the equal opportunity to exploit their publicity rights for commercial gain (with varying effective dates); however, they fail to go further than that, but for Florida’s requirement that athletes receive a certain amount of financial literacy and life-skills education prior to their first and third years of enrollment.

California Assembly Member Sydney Kamlager would answer in the negative. She has introduced a bill titled, “College Athlete Race and Gender Equity Act,” which intends to allow certain athletes to receive a royalty from their universities and also place a cap on the amount of money that athletics administrative personnel can be compensated.

To be clear, the bill (AB 609) was only introduced on February 12, 2021, and has not yet been heard in any committee. It may not ever be passed or signed into law, but the mere fact that it has been drafted and introduced is of note due to its potentially far-reaching consequences.

First, the bill specifies that if 50% of a school’s total sports revenue in California exceeds the total aggregate grant-in-aid athletics scholarship amount that is given to that school’s athletes during the reporting year, then the school will be required to pay the qualifying athletes with what is referred to as a name, image, and likeness royalty fee.

The calculation is expressed as follows:

The name, image, and likeness royalty fee amount for a college athlete shall be determined for each sport, and division or subdivision, by subtracting the total aggregate grant-in-aid athletic scholarships amount provided to the institution’s college athletes in a sport from 50 percent of the institution’s total sports revenue in the state, as reported to the United States Department of Education. That difference shall be divided by the total number of college athletes receiving a grant-in-aid athletic scholarship in that sport during the reporting year.

Second, the bill says that any school that receives state funds or tax-exempt status cannot compensate athletics administrative personnel in an amount above 50% of the average total compensation paid to such personnel by colleges in the Football Championship Subdivision of the NCAA.

Third, there is a provision that would, as of January 1, 2022, prevent colleges that receive state funds or tax-exempt status from entering into agreements for new athletics facility expenditures unless they are deemed necessary for health and safety reasons, are beneficial to the environment, or are necessary to comply with Title IX of the federal Educational Amendments of 1972.

This may be the most radical college athlete rights-related bill proposed on the state or national level since California signed its Student Athlete Bill of Rights into law. It provides a foundation for the concern that some have about the more basic name, image, and likeness proposals evolving into much greater changes to the college sports landscape. It is also hard to comprehend the justification for preventing schools from improving upon their facilities, putting California athletic departments at a disadvantage as compared to competitors outside of the state, if athletes are separately being afforded enhanced rights. More likely than not, this bill will go nowhere.


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.

The Bar Exam-Industrial Complex Wages War In Washington State

(Image via Getty)

Last June, the state of Washington decided to extend emergency diploma privilege to graduates of ABA-accredited law schools. Those without such degrees, and those who wanted the flexibility of a UBE score, were free to take a later administration of the exam. The extension of diploma privilege allowed graduates to begin their careers serving the public immediately, while vastly reducing the number of expected examinees, making future administrations — either in-person or remote — much less taxing. With in-person exams still a risky proposition in the early days of vaccination and remote exams boasting imposing grading obstacles (along with being generally terrible), it was an all around win. It also functioned as a trial balloon, allowing the state to evaluate whether or not it really needed a costly, anachronistic bar exam for ABA-accredited graduates in the first place.

That’s what appears to have terrified the folks in Wisconsin — ironically a diploma privilege state — who make millions of dollars off the existence of the bar exam and their colleagues in the state licensing apparatus.

So Washington found itself a battleground for the professional necessity of an additional expensive test after an already expensive degree from schools that have gone through an already extensive accreditation process. And, at the moment, entrenched monied interests appear to have the upper hand.

The Washington Supreme Court decided to go forward with the February bar exam through ExamSoft, bringing it back in line with the rest of the national licensing consortium. One cycle of diploma privilege licensure risks exposing that the emperor has no clothes when the waived cohort proves no less competent than attorneys who passed the bar, but two cycles becomes a trend that could unravel the whole self-justifying ball game. The data demonstrating that the bar exam has no public protection value can be downplayed based on the small sample size — adding more states to the diploma privilege pool would obliterate a key examiner talking point.

The court received letters from many sources including at least three letters from Washington law student coalitions, two letters each from two of Washington’s three law school deans, and an ACLU-WA letter. Unfortunately, these entreaties didn’t receive any direct engagement from the court.

The earlier opinion provided no details as to the reasoning behind the grant of emergency privilege, but, Chief Justice Steven Gonzalez says that he felt the earlier diploma privilege grant was limited to a world where remote exams could not be effectively administered, something that the court feels — despite the letters from experts and the actual lived experience of the October exam — is possible now. Because the NCBE and ExamSoft say it’s possible now and would very much like their money promptly.

It doesn’t even make sense. Whatever the reasoning in June, the court decided that diploma privilege did not jeopardize the public. That a half-measure exam is now possible doesn’t change that. To paraphrase the Winston Churchill anecdote, we’ve already established that the bar exam doesn’t protect the public, we’re just haggling now.

Chief Justice Gonzalez said the Washington State Bar has assured the court some of the problems associated with the software have been addressed.

“For example, the last iteration had problems with people being flagged during the test and knowing they were being flagged and people being disproportionately flagged if they had darker skin,” Gonzalez said.

He said it no longer flags test takers in the middle of the exam.

While informing examinees that they have been flagged put an unacceptable additional burden upon them, somehow I think the bigger problem was that it marked people of color for cheating based on the color of their skin in the first place. A shorter translation of the Chief’s reasoning: “Look, we get that it’s still racist, but we’re assured that it’s that polite, country club racism now.”

A recent “Bar Exam Q&A” further extends upon the state’s reasoning:

Q. How will WSBA address the bias inherent even in human review, especially when we know we can expect people of color and people with disabilities to be subjected to more flags and, hence, more human review?

A. We acknowledge no process is free from bias—we are cognizant of those biases and working to mitigate them. We are prepared to review many flags, and we are not going to look at anything beyond the very specific behavior flagged by the software. In most cases, the flags should be easily cleared (for example, as in the case of a dog barking in the background).

And by “extends,” I mean they found a way to make the shrug emoji 66 words long.

California flagged one-third of all examinees for cheating! The volume of false positives was so high that California then improperly compounded the harm by shifting the onus to the examinees to show cause that they shouldn’t be failed. Washington seems committed to avoiding the latter problem, but everyone has a plan before they get punched in the face. When half of the exams come back flagged — which empirics suggest is more than possible — what are they going to do then? “Easily cleared” flags may exist, but what happens when the test flags someone repeatedly for just a complexion too dark for the inherent bias of the algorithm? That’s not an isolated incident, it’s going to be flagged repeatedly. Are they watching the whole exam? That’s the sort of scrutiny that can gin up imagined violations that would never even be seen in other exams. These are all problems that no one has addressed that the court is just waving away.

Gonzalez did say the court has set up a working group, co-chaired by Justice Raquel Montoya-Lewis, to discuss the broader issue of using the bar exam as a way of measuring someone’s ability to practice law.

“Anyone can submit input to that,” Gonzalez said.

That’s a great idea. Unfortunately, anyone could submit input to this decision too and it just ended up in the trash heap.

Earlier: Washington Grants Diploma Privilege To Graduates Of ABA Accredited Schools


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.