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One by one, Biglaw firms are slowly but surely reversing their austerity measures. Back in April, Stoel Rives — a firm that came in 132nd place in the most recent Am Law 200 rankings, with $236,541,000 in gross revenue in 2019 — announced across the board salary cuts and employee furloughs. Partner distributions were reduced by 20 percent; associates, staff attorneys, and of counsel attorneys had their salaries slashed by 20 percent; and staff saw hourly reductions with corresponding pay cuts (5 percent for those earning less than $75,000; 10 percent for those earning $75,000-$100,000; 15 percent for those earning $100,000-$150,000; and 20 percent for those earning over $150,000). On top of that, staff bonuses were deferred and hours-based associate bonuses were eliminated in favor of discretionary bonuses. Last but not least, 10 percent of the firm’s staff members were furloughed.

Now, thanks to the firm’s “better than anticipated” performance during the pandemic, come September 1, those cuts are being partially rolled back. Melissa Jones, the managing partner of Stoel Rives, released the details in a statement (available on the next page):

• The current compensation reduction for all associates, staff, and of counsel lawyers will change from 20% to 10%.

• Staff salaries and schedules will be modified as follows:
  • Staff with a 20% reduction will change to 10%
  • Staff with a 15% reduction will change to 7.5%
  • Staff with a 10% reduction will change to 5%
  • Staff with a 5% reduction will return to full salary and schedule

• Third quarter partner distributions will be reduced by 15% instead of the 20% reduction in Q2

Everyone at the firm must be pleased (and wondering if their salaries will be fully restored sometime in 2020). Hopefully bonuses will be reflect the firm’s better-than-expected financial performance as well.

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).

Earlier: Associates At This Biglaw Firm Are Taking A 20 Percent Pay Cut

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.

Retired federal judge Maryanne Trump Barry doesn’t think much of her brother, President Donald Trump, in secretly recorded audio reported by the Washington Post. The recordings were made by Mary Trump, author of “Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man,” (affiliate link), who recorded a series of conversations with her aunt, Judge Barry, over the course of 2018 and 2019.

According to the WaPo article, a spokesperson for Mary Trump said she began recording conversations with her family in advance of her tell-all book after suspecting dishonesty by her family in a previous legal matter over her inheritance. (New York only requires the consent of one party for recorded conversations.) And boy, did Mary Trump get some unguarded and choice comments from Judge Barry.

Here are some of the highlights:

• “All he wants to do is appeal to his base,” Barry said in a conversation secretly recorded by her niece, Mary L. Trump. “He has no principles. None. None. And his base, I mean my God, if you were a religious person, you want to help people. Not do this.”

• “His goddamned tweet and lying, oh my God,” she said. “I’m talking too freely, but you know. The change of stories. The lack of preparation. The lying. Holy shit.”

• Lamenting “what they’re doing with kids at the border,” she guessed her brother “hasn’t read my immigration opinions” in court cases. In one case, she berated a judge for failing to treat an asylum applicant respectfully.
  “What has he read?” Mary Trump asked her aunt.
  “No. He doesn’t read,” Barry responded.

• At one point Barry said to her niece, “It’s the phoniness of it all. It’s the phoniness and this cruelty. Donald is cruel.”

• Barry told how she tried to help her brother get into college. “He was a brat,” Barry said, explaining that “I did his homework for him” and “I drove him around New York City to try to get him into college.”
  Then Barry dropped what Mary considered a bombshell: “He went to Fordham for one year [actually two years] and then he got into University of Pennsylvania because he had somebody take the exams.”
  “No way!” Mary responded. “He had somebody take his entrance exams?”
  “SATs or whatever. . . . That’s what I believe,” Barry said.

Of particular interest to the Above the Law audience will be the family dust-up over Barry’s appointment to the federal judiciary. According to the recordings, Donald Trump likes to take credit for Barry’s nomination:

“He had Roy Cohn call Reagan about needing to appoint a woman as a federal judge in New Jersey,” Barry told Mary. “Because Reagan’s running for reelection, and he was desperate for the female vote.” Then, she said, “I had the nomination,” and Donald Trump never let Barry forget it.

But Barry isn’t here for that:

“He once tried to take credit for me,” Barry said of her brother, quoting him as saying, “Where would you be without me?”

Barry said she told her brother: “You say that one more time and I will level you.” She told Mary that it was “the only favor I ever asked for in my whole life.” She said that she deserved the nomination “on my own merit” and that she was subsequently elevated to higher judicial posts without her brother’s intervention.

In the recordings Barry also took issue with Donald’s tendency to make everything — even their father’s funeral — about himself. And that’s why she doesn’t want the President, or any of her other siblings, to speak at her own funeral:

“Donald was the only one who didn’t speak about Dad,” Barry said. She told Mary that “I don’t want any of my siblings to speak at my funeral. And that’s all about Donald and what he did at Dad’s funeral. I don’t know. It was all about him.”

“I remember,” Mary responded.

Fascinating to see what Judge Barry has to say about her brother when she doesn’t think the world is listening.

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).

Last Tuesday, a fairly anticlimactic fly out closed out a 6-3 victory for the Tampa Bay No-Longer-Devil Rays over the New York Yankees. But an image making the rounds brought my attention to the subtext of that game-ending out.

And then… wait for it…

And the result was 6-3, an ominous tally that will inevitably reflect the lineup that either upholds or destroys Roe v. Wade depending on what happens over the next couple of months.

How do you Bluebook a baseball game?

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 new lawsuit claims that Chipotle restaurants are not providing customers with appropriate change when they pay for meals in cash. Maybe they are charging more for guac now? [Pittsburgh Post-Gazette]

* Utah is allowing individuals without law licenses to offer legal services under certain circumstances. [Desert News]

* A federal judge has halted a lawsuit aimed at challenging Pennsylvania’s mail-in-voting plans for the upcoming election. [Hill]

* A lawyer accidentally offered $10,000 to settle a case instead of the intended $100,000 and this lower number was accepted. This attorney should review the law surrounding scrivener’s error… [Daily Business Review]

* Check out this profile of a patent lawyer who became a professional poker player. [Card Player]

* A lawyer in Texas will appear at a jury trial virtually while his adversary attends the trial in person. The virtual attendee should consider hiring a surrogate to appear in person in his place. [Texas Lawyer]

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.

Which U.S. president married the daughter of his law partner?

Hint: The story actually takes a creepy turn since he became her legal guardian when she was orphaned at 11. She remains the youngest wife of a sitting president.

See the answer on the next page.

One of the foundational concepts of monetary theory is Gresham’s Law. Named after the Tudor-era financier who founded the Royal Exchange — who didn’t actually formulate it but gets the credit — it states that bad money drives good money out of circulation. If you have copper and zinc pennies in circulation, both nominally worth one cent, but the value of copper is higher, you create an arbitrage opportunity and gradually the copper coins will be taken out of circulation by enterprising individuals.

But the bad tends to drive out the good everywhere. Bad habits overpower good habits. Bad people push away good people. Bad procedures make good procedures irrelevant.

Keep An Eye On Your Bad Habits

So keep an eye on your bad habits. If you’re not careful, they’ll quickly overpower your good ones. No matter how carefully researched and thoughtfully drafted your brief is, a few typos will completely ruin the effect and turn the brief into a mess. One badly argued section will burn your credibility for the rest of the brief and probably the rest of the case.

This certainly doesn’t mean that you should be afraid of taking risks — in fact, timidity almost always reflects badly upon its practitioner — but you should always keep in mind that the importance of carefulness is almost always even more than you expect. Carelessness compounds, and a sloppy mistake is almost always going to draw attention. That’s in large part because you’re expected by all parties — clients, judges, and other lawyers — to be careful and present things clearly and correctly. No one will give you extra credit for doing the basic aspects of your job, nor should you expect them to.

Keep On Task And On Message

It’s likewise important to keep things on task, on message, and on a consistent theme. An otherwise clear, persuasive argument is ruined once you start rambling about some confusing or unrelated topic that the judge doesn’t follow, or start misstating an authority.

Instead, always remember to stay organized and focused, looking to shave off any areas of weakness or distraction that you can find. There are always areas to improve in any argument, and time spent on improvement is rarely wasted. When I prepare for an argument, I typically go over it in my head and type up notes, then go over the notes again and again to tighten it, find weak points to emphasize and see anywhere where I can improve. Briefs should go the same way: it never hurts to go over everything another time — including the old trick about reading it backward — to look for weaknesses and areas of improvement. And pulling in someone else never hurts. It’s sometimes shocking how, after you look too long at something, you end up missing something that is obvious when reading it the first time.

Always Keep Focused On Continual Improvement

Perhaps the best way to avoid the slow rot of Gresham’s inevitable and misattributed warning of atrophy is to focus singularly on continually improving whatever is before you. By keeping your eye on all of your potential weak spots, you can more easily find where the weaknesses actually are. So start today, and make it your goal to keep the bad from driving out the good.

Matthew W. Schmidt has represented and counseled clients at all stages of litigation and in numerous matters including insider trading, fiduciary duty, antitrust law, and civil RICO. He is a partner at the trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at matthew.w.schmidt@balestrierefariello.com.

Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.

The New Jersey Supreme Court has made the Fifth Amendment discussion surrounding compelled production of passwords/ passcodes more interesting. And by interesting, I mean frustrating. (h/t Orin Kerr)

The issue is far from settled and the nation’s top court hasn’t felt like settling it yet. Precedent continues to accumulate, but it’s contradictory and tends to hinge on each court’s interpretation of the “foregone conclusion” concept.

If the only conclusion that needs to be reached by investigators is that the suspect owns the device and knows the password, it often results in a ruling that says compelled decryption doesn’t violate the Fifth Amendment, even if it forces the suspect to produce evidence that could be used against them. Less charitable readings of this concept recognize that “admitting” to ownership of a device is admitting to ownership of everything in it, and view the demand for passcodes as violating Fifth Amendment protections against self-incrimination. The stronger the link between the suspect and the phone, the less Fifth Amendment there is to go around.

This decision [PDF] deals with a crooked cop. Sheriff’s officer Robert Andrews apparently tipped off a drug dealer who was being investigated. The dealer tipped off law enforcement about Andrews’ assistance with avoiding police surveillance — something that involved Officer Andrews telling the drug suspect to ditch phones he knew were being tapped and giving him information about vehicles being used by undercover officers.

Two iPhones were seized from Andrews who refused to unlock them for investigators. Investigators claimed they had no other option but force Andrews to unlock them. According to the decision, there was no workaround available at that time (at some point in late 2015 or early 2016).

According to the State, its Telephone Intelligence Unit was unable to search Andrews’s iPhones — an iPhone 6 Plus and an iPhone 5s — because they “had iOS systems greater [than] 8.1, making them extremely difficult to access without the owner/subscriber’s pass code.” A State detective contacted and conferred with the New York Police Department’s (NYPD) Technical Services unit, as well as a technology company called Cellebrite, both of which concluded that the cellphones’ technology made them inaccessible to law enforcement agencies. The detective also consulted the Federal Bureau of Investigation’s Regional Computer Forensics Laboratory, which advised that it employed “essentially the same equipment used by” the State and NYPD and would be unable to access the phones’ contents. The State therefore moved to compel Andrews to disclose the passcodes to his two iPhones.

Apple implemented encryption-by-default in September 2014. Andrews was arrested in July 2015. This would be about the same time the DOJ was trying to force Apple to crack open an iPhone for it in the San Bernardino shooting case. This was ultimately resolved by an outside contractor (most likely Cellebrite), but it appears that no one had a workable solution when investigators in this case attempted to crack the seized phones.

Andrews challenged the compelled production of passcodes, claiming this violated his Fifth Amendment rights. The trial court disagreed, as did the state appeals court. The state’s top court arrives at the same conclusion.

The state argued it actually knew far more than what’s needed to clear the “foregone conclusion” bar.

[T]he State argues that communication between co-conspirators has no special privacy status, that the State “has established . . . that it already knows what is on the phone[s],” and that the State has a superior right to the contents of the phones because of the unchallenged search warrant.

The court finds in favor of the state, but it does recognize that passcodes are more testimonial than fingerprints or other biometric features used to unlock devices.

A cellphone’s passcode is analogous to the combination to a safe, not a key. Communicating or entering a passcode requires facts contained within the holder’s mind — the numbers, letters, or symbols composing the passcode. It is a testimonial act of production.

It also recognizes there may be no clear way to distinguish between passcodes and biometrics when dealing with compelled production.

We also share the concerns voiced by other courts that holding passcodes exempt from production whereas biometric device locks may be subject to compulsion creates inconsistent approaches based on form rather than substance. The distinction becomes even more problematic when considering that, at least in some cases, a biometric device lock can be established only after a passcode is created, calling into question the testimonial/non-testimonial distinction in this context.

The court says the state has proven enough to be granted the “foregone conclusion” exception to the Fifth Amendment.

The State’s demonstration of the passcodes’ existence, Andrews’s previous possession and operation of the cellphones, and the passcodes’ self-authenticating nature render the issue here one of surrender, not testimony, and the foregone conclusion exception to the Fifth Amendment privilege against self-incrimination thus applies. Therefore, the Fifth Amendment does not protect Andrews from compelled disclosure of the passcodes to his cellphones.

The dissent disagrees. It says that although the tech has changed, the underlying principles of the Fifth Amendment haven’t. And it’s not just the dissent saying this. It’s also the nation’s top court, which has never held that the compelled production of incriminating testimony complies with the Constitution.

In a world where the right to privacy is constantly shrinking, the Constitution provides shelter to our innermost thoughts — the contents of our minds — from the prying eyes of the government. The right of individuals to be free from the forced disclosure of the contents of their minds to assist law enforcement in a criminal investigation, until now, has been an inviolate principle of our law, protected by the Fifth Amendment and our state common law. No United States Supreme Court case presently requires otherwise. No case from this Court has held otherwise. That protection deserves utmost respect and should not be lessened to authorize courts to compel a defendant to reveal the passcode to a smartphone so law enforcement can access its secured contents.

Given the current split in both federal district courts and state courts on the issue, the dissent says the New Jersey Supreme Court shouldn’t be an enabler of potential Fifth Amendment violations in the absence of US Supreme Court precedent.

Until the Court clarifies its intentions about application of the act of production doctrine in this setting, I would follow the only sure directional signs the Court has given…

Things may be slightly harder for investigators at the moment, but it’s not the court’s role to make things easier for the government. They’re supposed to be a check against government power grabs, not an ally in its attempts to limit the protections it supposedly granted to its citizens. We live in a “golden age of surveillance.” There’s more information available in unencrypted form than there’s ever been. And the arms race between device makers and encryption crackers is ongoing. It hasn’t ended and device encryption has not been declared the winner.

Law enforcement must find another means of obtaining access to the encrypted substantive information on two cell phones whose contents it wishes to search and for which the government has a search warrant. Technological barriers must be overcome without sacrificing constitutional, deep-seated historical protections against governmental intrusions forcing individuals to become assistants in their own prosecutions. Modern technology continues to evolve, bringing new problems; but it also may bring new solutions.

But that’s just the dissent. The majority says the Fifth Amendment can be bypassed if the state can find enough connective tissue between the locked device and the person who refuses to unlock it.

New Jersey Supreme Court Says ‘Forgone Conclusion’ Trumps Fifth Amendment In Crooked Cop Case

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