Category: News Feeds

Dear Deans, Provosts, Presidents, University Counsel, and, of course, the ABA:

I am writing to request some information. It has been a crazy time, and I think we have all operated well in keeping the wheels of education turning. However, as we move forward out of this semester, I have some concerns about the dominant method of communicating materials to our students. I think we should give this some thought.

You see, a lot of my colleagues opted for synchronous learning (“Zoom classes”) while I opted for asynchronous learning (“not Zoom”). I feel some peer pressure. So, I thought I would write this blog post to ask some serious questions about Zoom pedagogy because I will be adopting it next semester (if we are still online at that point).

I don’t know the answers myself. But I thought I’d ask the questions.

1. A student cleaned their gun on Zoom during class. If that happened to me, could I discipline the student? Even though they are in their own apartment? If I work for a state university, can I boot them off the screen without fear of raising a constitutional concern?
2. A professor accidentally left a tab open to his porn while sharing his screen (just the tab showing). He was fired. What if a student does that during a presentation? Are they subject to university regulations? Can I be fired for having a tab open to a museum website with Renaissance paintings? How about an NRA website? A Joe Biden or Donald Trump campaign website?  Can a student be dismissed for doing the same thing?
3. A student puts on a shirt that says something racist. Can I turn off their video? If so, do I suffer First Amendment issues if I work for a state university?
4. Will a foreign LLM lose their status because all of the courses are online and may not count as a “full course of study” in the future?
5. Does Zoom comply with ADA regulations? Are their greater challenges for some in using zoom that creates an unfair imbalance in educational opportunities?
6. What research demonstrates that, during a time of crisis, synchronous learning is superior to asynchronous learning? How about just research suggesting synchronous is better than asynchronous?
7. Is there research about Zoom being the equivalent of face-to-face instruction? There seems to be literature out there suggesting Zoom is more exhausting even if the professor is delivering the exact same lecture they would in a live classroom setting.
8. If a student complains about my Zoom lecture, will you have my back or are you now so worried about tuition dollars that no matter what I do it will be wrong?
9. There are serious issues with respect to security and Zoom. Have you examined the FERPA issues related to this or no? I just remind you here that the “S” in Zoom stands for security, ha ha! Not only am I concerned about FERPA, I’m concerned about broader security issues such as webcam spying.
10. Just going forward, some students have expressed concern about getting credit for online classes via asynchronous learning. Is it your position that Zoom classes will absolutely meet ABA standards after this semester? Also, some law schools were completely asynchronous. Do you expect the ABA to put them on probation?
11. There is a broader issue with respect to students of lower socio-economic status (SES). You might recall that when we speak of students of lower SES, they might have difficulties with reliable Wifi, or even having a reliable laptop. Some may even share their laptop across family members who may need it for child instruction, other work, etc. They may hold jobs or need a new one because of the crisis. Does the ABA and law school push toward Zoom undermine all of our talk about equity?
12. Does the FBI warning about [racist, sexist, and pornographic] Zoombombing raise any concerns for you all?
13. What legal risk do I face as host of a classroom meeting if a third party Zoombombs something offensive?
14. Are some students unable to access the technology to the point of feeling abandoned?
15. Some students lack childcare in this new COVID-19 world. What guidance have you given faculty about encouraging parents in the Zoom classroom?  What advice are we giving students about paying attention during a Zoom class while their children might need attention in the background? By the way, can I ban student family members from “auditing” the class?
16. Have you given any guidance to faculty members about the potential for having a “Charlie Kirk” moment? Should we be careful and record to protect ourselves?
17. Online classes require small class sizes. Will we be reducing class sizes to accommodate? I hear effective Zoom requires a class size of fewer than 30 students.
18. Is it your view that the Zoom courses are temporary? Or give the budget cuts are you looking at using this as a means to kill tenure and perhaps lower your faculty payroll?
19. Suppose I teach in Virginia, and I have a student who is sheltering in California. I am requiring that student to get up at 6 a.m. for my 9 a.m. class, correct? Any problem with that?
20. If a student refuses to turn their cam on because of privacy concerns, and I mark them absent, what are the legal ramifications?
21. What if I want to record my class, and a student refuses who resides in a two-party consent state? Will my blanket syllabus consent defend against state criminal charges?

You’ll see that many of the questions relate to one another as well. I’ll await your response. Again, I don’t have any answers, nor am I seeking to serve on any Zoom committee. I’m just wondering.

Very truly yours,

LawProfBlawg

PS: I forgot to preface this with “this isn’t my area of expertise,” in case that wasn’t obvious.

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LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here. He is way funnier on social media, he claims. Please follow him on Twitter (@lawprofblawg) or Facebook. Email him at lawprofblawg@gmail.com. 

The COVID-19 epidemic appears likely to change a great deal about the way we live: How we work, how we travel, how we interact with each other, how we teach and learn, how we get medical care, how we vote (possibly in more ways than one), what we wear, where we make things, how we eat, and so on. It also seems to have not only changes but reversed a long-standing ambition of Jay Clayton’s Securities and Exchange Commission: to make whistleblowing as unattractive as the law allows.

On Monday, the SEC announced its latest award, to a recipient who will get almost $2 million for helping the agency probe an ongoing fraud and get investors their money back. That brings to over $64 million the amount paid to whistleblowers during the first seven months of the fiscal year that began in October—more than the SEC has awarded in any full year except 2018, according to an analysis of agency records. The 16 whistleblowers receiving money thus far exceeds the number in any previous year….

“We’ve made significant strides to streamline and accelerate the evaluation of claims, and the recent increase in the number of whistleblower awards reflects our efforts,” the SEC’s enforcement co-directors, Stephanie Avakian and Steven Peikin, said in a statement. “We are committed to rewarding the valuable contributions of whistleblowers in a timely and efficient manner.”

Another day, more COVID-19 austerity measures.

The latest firm Above the Law can report is making cost-cutting moves amid the global pandemic is Vedder Price. The firm made $257,000,000 in 2018 gross revenue making it 121st on the Am Law 200, but as we’ve seen time and again, a history of high revenue numbers doesn’t stop the new coronavirus reality.

According to tipsters, the firm made a 4 percent reduction of force, and attorneys, staff, and paralegals all found themselves out of work. Partners also took a 20 percent cut on their draws, the summer program has been shortened, and the new associate class slated to start at the firm in the fall has been pushed back until January 2021.

When reached for comment, a spokesperson provided the following:

Vedder Price has taken measures in response to the ongoing COVID-19 crisis. We reduced our workforce by 4% in areas where utilization was most impacted by the remote work environment, and provided each affected person with severance plus healthcare coverage through September. The Firm’s shareholders/owners also proactively reduced their current pay by 20% to bear the financial brunt of the crisis. Finally, we shortened the duration of our 2020 summer program and deferred the start date of our incoming 2020 first year associate class to January 2021.

Best of luck to those laid off during these tough times.

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

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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).

The lockdown presents all sorts of unexpected obstacles to the practice of law, and while seating for the upcoming bar exam is the hottest topic right now, the folks who have already passed the exam are facing bureaucratic nonsense too.

We’ve started hearing from candidates seeking admission to the bar that some Character & Fitness Committees are struggling to get their work done remotely and have put the onus on the candidates to reinvent the wheel. One tipster forwarded this message from a C&F source instructing the candidate to start from scratch:

Submit your entire application electronically. Although you have already physically submitted your application, I don’t have access to your file. My entire staff is required to work remotely and your documents are physically in an office that I am not allowed to enter.

That’s a reasonable enough request… two months out. However, the email was apparently sent FIVE DAYS before the materials are due. This is an application that requires chasing down recommendations from former employers and materials from law schools — all people who aren’t responding in a flash to random requests right now. And, yes, it requires chasing these down because the applicant doesn’t just have copies since the committee requires these be sent in directly by the authors without passing through the candidate!

If there’s a trend that flows through all of the bureaucratic fights we’re seeing right now it’s an acute case square peg/round hole syndrome. Obviously paper forms are inaccessible. A rational response to this would be to request more limited and easily acquired materials, perhaps coupled with an expanded personal interview over teleconferencing services to allow the committee to issue limited provisional approvals. Develop a regime for random spot inspections of trust accounts for attorneys on a provisional approval or something. At the very least, a proposal to blow out the deadline to realistically offer applicants an opportunity to regather the more onerous materials. Instead, the committee is trying to find a way to complete the full review within the existing timeline without access to the file.

The pandemic has radically shifted how everything works. Stop pretending that it’s possible to conduct business as usual with a few hacks.

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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.

On any given week there is enough grotesque behavior and despicable acts being exposed within our criminal “justice” system that it could make any sane person outraged. For example, last week it came to my attention that officers in South Dakota were regularly subjecting innocent citizens to involuntary catheterization. Why was this grotesque violation of constitutional rights being committed? To try to catch low-level drug offenders, of course. Want to be even more outraged? Know that one of the citizens being subjected to this grossly invasive and degrading procedure was just 3. Years. Old.

As others have noted, however, even when the worst kinds of abuses within our legal system are exposed, a substantial section of the population will react not with outrage, but by looking “for even the smallest hook on which to hang an excuse for the cops.” The likely reason this section of the public refuses to be outraged is that they are not the ones likely going to be subjected to the abuse. Yet, when these folks are brought under the thumb, suddenly the reaction becomes remarkably similar to the voices that have been crying foul for years. Which brings me to the case of Michael Flynn.

Much ink has been spilled over this case already, and if you want to get deeper into specifics I suggest looking, here, here, or here. What I want to briefly focus on is the oft repeated, but demonstrably delusional claim that the tactics used by the FBI in investigating Flynn were somehow extraordinary or unusual. Spoiler alert: They weren’t.

As former federal prosecutor Ken White has explained, on multiple occasions in fact, and using substantial amounts of case law to back up his explanation, that when it comes to the tactics used to investigate Flynn “[t]he law is clear: the FBI can find irrefutable evidence of a crime, interview you about it, collect lies that it knows are lies and that do not deter it for a second, and then have you charged with lying under Section 1001.” In other words, the police tactics used against Flynn have been in use for a long time and have been given full blessing by our nation’s highest court. The fact that Flynn’s defenders are only outraged now, and not advocating that the law be changed but that only Flynn be given a pardon, says something. Namely that these Flynn defenders view these gross tactics as perfectly fine when used on others, just not against those who they care about.

I call these tactics gross because, as White points out, they have been used by the government to, “in effect, manufacture crimes.” But again, the difference between me and Flynn’s defenders is my aversion goes beyond the Flynn case. To get a perspective of “normal” police tactics I spoke with a friend of mine from law school who is now a public defender. Among other things, he described to me a case where a client’s 80-year-old grandmother was prosecuted (based on a thin case at best) in order to effectuate his client’s guilty plea. When I asked this friend to compare the treatment Flynn received with what he has seen, his response was that “it is absolutely common for police to lie or set defendants up to get additional charges. It happens all the time. In multiple drug sales cases, often the defendant would be probation available, but by doing multiple buys, they have stronger leverage against the defendant.”

In my opinion, the things a person chooses to be outraged by reflects their priorities. And if you are outraged by the Flynn case but excused, or simply never cared enough to comment about past (often deadly) abuses, the logical inference is that you do not actually care about the abuse within the system or about correcting it. You only care about who the abuse is directed against.

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Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

A lot of people are incensed by the New York proposal to prioritize seating for local law school grads at the planned Fall bar examination. And while critics shred New York with sharp takedowns of straw arguments and indulge in fairy tale logistics about New York conjuring up an additional 7 or 8 thousand socially distanced seats by the end of the summer, Massachusetts took a look at New York’s plan for an orderly administration of a COVID-era bar exam and said… yeah, we’re going to do the exact same thing.

This is what happens when you spend all of your time arguing “coulda” and not “shoulda.” With all the effort poured into arguing over whether or not states can administer an in-person exam this way, critics have more or less forfeited the debate over whether or not states should administer an in-person exam at all at this point. The idea of an online exam appeared as an afterthought in the much-heralded “Deans Letter” to the New York bar examiners despite being the only remotely workable solution offered.

Massachusetts seemed to be charting a better course than New York, having told the NCBE that if it couldn’t provide a workable online bar exam, they’d go ahead and write their own online test to make sure that examinees who want to practice in the state could still get a license as quickly as possible. And, to their credit, that’s still on the table. But in the most recent proclamation, the state indicates that they’ll administer the in-person bar exam — which unlike the potential online test would provide portable scores — with seating prioritized for local law school grads.

This statement, sent around to Themis Bar Review clients, recaps the Massachusetts proposal.

It’s not ideal and states should be pushed to come up with innovative, outside-the-box solutions instead of steadfastly sticking to a broken, in-person bar exam process. But if no one is going to step up and actually challenge that status quo, then this is a perfectly reasonable solution.

Bar examiners are struggling to figure out how to lock down thousands of seats, spread over enough area to allow appropriate distancing, on short notice, amidst uncertainty that it will even be safe to open up again by September. Going forward with an in-person bar exam under these conditions is bonkers, prioritizing seating for local graduates most likely to be taking the in-state jobs that require immediate bar passage and leaving those with steady employment to take a later administration makes sense.

Dear Massachusetts, please junk this plan. Offer the online exam to all takers. Sure, it’s not “approved” by other states… yet. Lobby other states to accept scores from this self-composed exam. Northeastern states, at the very least, should be prepared to accept this Massachusetts ersatz UBE for the Fall of 2020 in order to keep the flow of new attorneys moving. This is what powerful voices should be fighting for.

But instead we should expect more thinkpieces about how out-of-state T14 students should be able to take bar exams huddled on their nice campuses while the states have 2,000-seat shortfalls for all other takers.

Because everything’s broken.

Earlier: Law School Deans Rail Against Grave Injustice Of… Waiting A Few Months To Take The Bar Exam
With NCBE Quibbling Over Online Bar Exams, Massachusetts Says They’ll Just Write Their Own

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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.

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The road to the September 2020 bar exam in New York has been more than a little bit bumpy. Let’s start at the beginning. The summer bar exam is usually administered on the last Tuesday and Wednesday of July. As COVID-19 started to ravage New York and the state completely closed down, it became increasingly more clear that giving the bar exam as scheduled in July 2020 was not feasible.

On March 27, 2020, the New York Board of Law Examiners (NY BOLE) announced that the test will be postponed until September 9 and 10 and that New York law schools will be used as testing locations.

A few days later, NY BOLE informed candidates that the jurisdiction will not be at full testing capacity for the fall and that they will announce priority guidelines.  

On April 24, 2020, the results for the February 2020 New York bar exam were released, and 2,133 people learned they failed. My phone (along with that of every other bar prep company, tutor, and academic support person) started ringing off the hook with questions from students who failed: “Will I be able to take the bar exam? When? Should I start looking at other jurisdictions? What happens to me?” And, unfortunately, there was only one possible response: “I have no idea.” 

On April 30, 2020, the NY BOLE announced their completely unsurprising guideline for prioritization: first-time J.D. and LL.M. candidates from the 15 New York law schools will be given the first opportunity to register for the exam from May 5, 2020, to May 15, 2020. After that window,  space will be reassessed and registration will be reopened based on a new set of priorities. (Those new priorities have yet to be announced and comes with their own set of questions: Who gets prioritized next? First-time takers from out of state? Repeat takers from in-state? First come, first serve?)

Now comes the outrage from out-of-state schools and the advocacy for their students. Out-of-state law schools are offering to use their schools as testing locations for the New York bar exam. Deans wrote letters to the NY BOLE and published articles on the subject. And, it appears that conversations may be underway to address the issue.  

But my question is what happens to the 2,133 students who failed the bar exam in New York in February? 

Who advocates for them? Who takes up their cause? Why is it less important to test them? Are people who fail the bar once, twice, or a few times before passing not valuable members of the legal community? How is New York providing for them? 

So what is New York’s solution for their lack of capacity? They have advised students to take the bar exam in another jurisdiction. Okay. A limited number of states even allow “courtesy testing,” which is allowing students to sit for the exam in their state with no intent to be admitted or practice in the state after passing. Can New Jersey test an additional 2,133 students? How about Connecticut? What about Maine, which tested a whopping 60 students in February 2020? (I would bet they are really rethinking their courtesy seating policy right about now.)  How long before other jurisdictions make rules to only test their own students? 

Now, let’s say these students can miraculously all find another jurisdiction to take the test in. It is significantly more expensive to take the bar exam in most other jurisdictions. Not to mention the added travel costs. So, students who have already had their careers delayed from failing the bar exam and who already had to invest more money into taking the bar exam, must also incur additional costs to take the bar exam somewhere else. 

Despite my clear frustration, I am not trying to jump on top of the pile of people hating on the NY BOLE these days. I think they are in an impossibly difficult situation. They are trying to make big, important decisions on the fly and, unfortunately,  in the process people are getting left behind. I’m also not unbiased. I own and operate a bar exam coaching company, and we primarily service repeat takers. Maybe this is why I’m seeing their plight more clearly than others. Repeat takers in New York are going through hell right now. You can trust me on this as I spend hours each week doing bar exam consultations with crying students. What is happening to these students is cruel. Beyond simply having compassion for them, we need to find solutions. 

And wouldn’t you know, I see two potential solutions: 

1. New York increases testing locations. There are other schools and universities that can accommodate students within the borders of the state. There are out-of-state testing options. Will this be easy or convenient? Probably not. But if New York wishes to move forward with the test in its current form, this is the only viable option.
2. The National Conference of Bar Examiners makes the UBE available online, and New York accepts scores from online administrations. I’m not sure how it is possible that in 2020 it is inconceivable for the NCBE to put the bar exam online. Ideal? No. But impossible? Come on. The technology exists for this and it can be done. 

I know not everyone will agree with me on these solutions. But, if nothing else, they are inclusive, preserve the integrity of the exam, and don’t arbitrarily make decisions about who gets tested. 

We are the lawyers. We live for order, organization, and fairness. Others will look to our profession for guidance and counsel in the days and weeks and months to come. And what will they see? Well, if our approach to the bar exam is any indication, they will see chaos, hasty decision making, and unjust outcomes. We’ve got to do better, for ourselves, for our students, and for the people who are going to need our help in the future. 

And right now, in this moment, we must consider the message we are sending about the importance of repeat bar exam takers to the legal community. They are not less than, their future legal careers are not less important, and their financial burdens do matter. They need to know that the New York legal community sees them and appreciates their value and that they are not being forgotten. 

The students we are holding back from taking the bar exam are the future Kamala Harrises, JFK Jrs.,  Michelle Obamas, and Hillary Clintons (all of whom failed the bar exam their first time). And, they are the hundreds of students I’ve worked with over the past seven years who took the bar exam more than once before passing and who are now important and valuable members of the legal profession. By failing to prioritize them to take the bar exam in the fall, we are not only doing them a disservice but also doing a disservice to the entire legal community.

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Kerriann Stout is a millennial law school professor and founder of Vinco (a bar exam coaching company) who is generationally trapped between her students and colleagues. Kerriann has helped hundreds of students survive law school and the bar exam with less stress and more confidence. She lives, works, and writes in the northeast. You can reach her by email at info@vincoprep.com.

* A lawyer representing Alex Jones in a case about Sandy Hook conspiracy claims has asked to withdraw. This leaves a lot of questions. [Texas Lawyer]

* Devin Nunes and his lawyer may be facing court sanctions for questionable legal filings. [Raw Story]

* It appears that the new streamer Quibi may be facing some existential litigation. And my brothers were just telling me about this service yesterday! [Fox Business]

* President Trump’s lawyer is looking to get an attorneys’ fees award paid by a settlement related to Stormy Daniel’s questionable arrest at an Ohio strip club. [Law and Crime]

* New Mexico is invoking a riot law to control the outbreak of COVID-19 on Native American reservations. [New York Times]

* A judge who paid $25 a month to park in a lot co-owned by an attorney was not disqualified from hearing cases involving that lawyer. If that $25 fee was in Manhattan, there would be more to the story… [Virginia Lawyers Weekly]

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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.