NCBE President Gives Trainwreck Of An Interview

NCBE President and CEO Judith Gundersen sat down for an interview with Karen Sloan from Law.com and opened up about COVID, diploma privilege, and where we go from here. And let me tell you, folks, it was a mess! But for everyone watching as online exams have been fraught with disaster so far, here’s Gundersen’s take on the NCBE’s plan for the October administration where multiple jurisdictions are trying to simultaneously deploy a system that immediately crashed when one mid-sized state tried it:

What’s the alternative if the online Oct. 5 and 6 exam is a disaster? Where do we go from there?

That’s a good question. I would be very surprised if that happened, given all the good and thoughtful professionals who are working on this. Why don’t you interview me Oct. 6.

Ahem.

“The plan is no plan at all” should be engraved upon the NCBE seal. These are obviously tough times and everyone’s struggling. For all the faults with the plan, an online bar exam was a noble attempt to make the test safer — and one that Gundersen and the NCBE immediately shit all over before realizing they were losing that public relations battle — but at this point the possibility of a complete failure in October has to be taken seriously. One of the nation’s leading testing software providers has already weighed in that it’s completely infeasible. And yet there’s no contingency plan for October other than hope and good wishes?!?

It just underscores the overarching problem with the NCBE. Later in the interview, Gundersen has occasion to say, “Our interest—as it always has been—is to consistently and professionally serve courts and boards of admission,” and that’s the whole problem because it absolutely isn’t. There’s a fundamental disconnect between how the NCBE markets itself to states as some kind of attorney licensing process thinktank when in reality the NCBE is a testing company whose only interest is in selling more tests. The sooner all parties to the licensing question recognize this the better.

Nowhere is this more pronounced than in the NCBE’s role in attempting to squelch emergency diploma privilege efforts across the country. Sloan asked about this head on:

There has been a lot of criticism directed at the NCBE and you personally for how things are playing out this cycle—particularly that the NCBE is opposing the adoption of diploma privileges. Do you think that criticism is fair?

There has been a lot criticism leveled at NCBE and me, and it probably is part of the territory working at the organization that produces the bar exam. I think some of the anger and criticism about diploma privilege is misguided at NCBE. NCBE isn’t making the decisions in any of these states, as far as whether to proceed with the bar exam, when to do it, and whether to do it at all. That’s a state-by-state decision.

It’s bizarre that Gundersen expects this level of naïveté from an audience of attorneys and soon-to-be attorneys. Yes, it’s a state-by-state decision… informed by a multimillion-dollar lobbying group that provides all the half-baked data that informs those decisions. The NCBE sits on over $111 million in net assets and turns an additional $5-8 million in profit every year and works very hard to assure states that the only defense against anarchy is keeping that gravy train going. Online exams themselves were a well-meaning effort and when first proposed, the NCBE swiftly told states that they were doing a disservice to young attorneys for questioning in-person exams in a pandemic arguing that there would be no portable licenses without the NCBE’s blessing. Thankfully some states have dusted off some old books and realized that, in the before time… the long long ago, states used to be capable of negotiating their own reciprocity deals.

Does the NCBE have a conflict of interest on the diploma privilege issue given that the whole purpose of the organization is to create and perpetuate the bar exam? Should you stay out of the discussion?

We’re certainly not in the discussion right now.

Wait for it…

We put the white paper out to provide important background information and context.

The “white paper” described here was eight pages of diploma privilege advocates eat babies rhetoric that the NCBE threw together and stuck under the noses of state bar examiners and supreme courts in the interest of setting the narrative early on as COVID started to manifest across the country. To the extent Gundersen says she’s “not in the discussion right now,” she’s leaning heavily into “right now” as in “not while I’m speaking this specific sentence.”

This whole thing is a slow-motion trainwreck. There aren’t any flashy gotcha moments, just straightforward questions followed by nakedly debunked buzzspeak. Some people on social media are dragging Karen Sloan for this being a softball interview but I think she knows her audience is reading these answers with enough savvy to not take these answers at surface-level.

Some diploma privilege advocates are concerned that the character and fitness review process is being used by states to try to silence them. They heard the comment you made last week on that online symposium as a threat. What did you mean?

NCBE has no role in character and fitness.

But…

We do provide the investigations for some states, but we make no decisions, we just provide information, like school transcripts. Those decisions are all made by courts, boards of bar admission, or by character and fitness boards in some states. I had just come off a conference call where [jurisdiction] administrators were noting the change in the kinds of back-and-forth communications they’ve had with examinees forever, and how different it was this year. Whether and what these staff members for these boards will do with that—it’s not up to me.

We report, state officials decide. There’s certainly no reason someone might construe the agency that provides investigative reports to Character & Fitness of being able to influence the outcome of that inquiry based on the report… nope, no siree!

I went back and rewatched that symposium panel. It really does sound like you were saying not that NCBE would take actions against people, but that you were hearing states tell you that they would bring those examinee communications into their character and fitness reviews.

The conversation that I was listening to was just a recognition that this has been more of an issue. What they are going to do with it probably varies among states. More than anything, it was how the conversation has really shifted from prior years. It’s the volume and the tenor that has been different.

Alright, let’s talk about this. You can listen for yourself at the 3:50:10 mark of this video. This characterization is technically accurate in the same way Trump’s fondness for “some people are saying” is accurate. Maybe this is a reflection, uninfluenced by anything she said on this call, of how some state bar examiner felt. But it was Gundersen hyping it to a broader audience and weaponizing it as “all y’all better watch your mouths.” Cautioning that “criticism” will be rebranded as “a lack of civility” is an effort to silence that criticism. We will never know what the bar examiners on that call really said, but that’s not really the point — as I put it at the time:

Did the president of the NCBE really threaten to keep bar exam critics from getting licenses? Well, it depends. If you’re the sort of person who thinks a mobster saying “nice little shop you have here, it’d be a shame if something happened to it” is just expressing well wishes on your business endeavors, then no. But if you’re one of the people residing in a reality-based society, then she absolutely did.

The whole interview is amazing and reads like an embattled Prime Minister explaining how reports of the coup are overblown and it’s jaw-dropping. Try reading the whole thing in the Mr. Burns voice. Just take “Remember a shiny new donkey to whoever brings me the head of Colonel Montoya” and replace “Colonel Montoya” with “whoever runs @BarExamTracker.”

‘I Understand the Anxiety and the Anger,’ Says Top Bar Exam Official [Law.com]

Earlier: NCBE Prez Issues Threat To Tie Up Licenses Of Bar Exam Critics
NCBE Trashes Diploma Privilege, Sprinkles In Some Racist And Sexist Conclusions
With NCBE Quibbling Over Online Bar Exams, Massachusetts Says They’ll Just Write Their Own
Bar Exams In The Time Of COVID: Crashes, Hacks, And (A Few) Masks


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.

An Excellent Opportunity For New York Litigators

The Second Circuit courthouse in downtown Manhattan (photo by David Lat).

If you’re a litigation associate in Biglaw, I commend to you this excellent essay by Joshua Libling of Validity Finance, Up or Out: Why Litigation Associates Need to Make a Decision by Their Fourth Year.

You should read the whole piece, but here’s the core of Libling’s argument:

The litigation associate track at Big Law firms is badly structured to the detriment of associates…. The key structural problem is the combination of two facts: (1) You will find out if you are going to make partner somewhere in your seventh to 10th year out of law school; and (2) you are at your most marketable somewhere around your fourth or fifth year out of law school.

The problems those two facts create should leap off the page, but here are two big ones. First, you need to make the decision about whether you want to try to make partner before you have a good sense of what that even means or how likely you are to get it. Second, every year beyond the fourth or fifth that you are committing to try to make partner at your firm is a year you are decreasing the ease with which you can transition to another job if you do not make partner. Put differently, as your job security decreases because you get closer to an up-or-out decision, your flexibility in replacing that job also decreases.

This is why, when I recently wrote about what elite litigation boutiques are looking for, I mentioned “[b]etween two and four years of experience at a top Biglaw firm” — i.e., not less than two and not more than four years of experience.

Fifth-year litigation associates are still somewhat marketable, but for litigation associates at large firms, your best window of opportunity for a lateral move is as a third- or fourth-year associate. There are relatively few opportunities for litigators who are more senior than fifth-years (unless they happen to be litigation partners with seven-figure books of business).

But if you happen to be a senior litigation associate (or counsel) with superb credentials, here at Lateral Link we have an opportunity that might be of interest. It’s an unposted opportunity — not on the law firm’s website, not on LinkedIn or any other job site, not on Leopard Solutions — at a firm with whom we have an excellent and longstanding relationship.

This Am Law 200 and NLJ 500 firm seeks a litigator with at least seven years of experience, for a position in its New York office as a senior associate, counsel, or (non-equity) partner, with compensation and title to be determined based on the qualifications and experience of the candidate. It’s a superb firm where litigation is the largest practice group and core to the firm’s success and profitability, i.e., not playing second fiddle to the transactional practices. This means that litigators at the firm have a real chance at partnership — which is unfortunately not the case at many of the top Wall Street firms, where litigators often make up 20 percent or less of new partners.

There’s no shortage of senior litigation associates in New York who are looking for exit options. So a competitive candidate for this rare opportunity will have credentials like the ones sought by elite litigation boutiques:

  • A very good academic record from a top 14 law school, or an excellent academic record from a non-T14 law school (e.g., Latin honors, Order of the Coif, Law Review).
  • One or more clerkships with federal district or circuit judges — the more prominent the court or the judge, the better (e.g., S.D.N.Y. or E.D.N.Y. or D.D.C. for district judges, SCOTUS feeders for appellate judges).
  • Seven or more years of experience at a top Biglaw firm (e.g., a Vault 10 firm).

If you have all of these credentials and would like to learn more about this position, please email me at dlat@laterallink.com.

And if you’re a junior to midlevel litigation associate, read Joshua Libling’s Law.com piece if you haven’t done so already. You have an important choice to make — so choose wisely.

Up or Out: Why Litigation Associates Need to Make a Decision by Their Fourth Year [Law.com]

Earlier: New Opportunities For New York Litigators (Including Outside NYC)

Ed. note: This is the latest installment in a series of posts from Lateral Link’s team of expert contributors. This post is by David Lat, a Managing Director in the New York office, where he focuses on placing top associates, partners, and partner groups into preeminent law firms around the country.


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

Suspension Recommended For Judge Accused Of Calling Juror ‘Aunt Jemima’

Judge Tranquilli election materials from 2013, Image via northpghpolitics.blogspot.com

Remember the judge in Pennsylvania that allegedly called a juror Aunt Jemima? It made news way back in February, which seems a lot more than a few months ago, back before even the multimillion-dollar brand of Aunt Jemima syrup came to the realization that the term was racist AF. Given the increased awareness of the history of the term, it’s probably no surprise that the Pennsylvania Judicial Conduct Board is seeking a suspension of Judge Mark Tranquilli.

The headline grabbing incident is when he allegedly asked as assistant district attorney why he’d selected a Black woman for the jury, saying, “You weren’t out of strikes when you decided to put Aunt Jemima on the jury.” But, as tends to be the way in cases like this, Tranquilli is alleged to have said a slew of problematic things. According to the ethics charges, available in full below, Tranquilli also allegedly said during a custody hearing that he didn’t care about the couple’s children and he would “split [the couple’s] baby in half like Solomon and sleep like a baby that night.” He allegedly went on to describe what he expected in terms of communication thusly, “When I say communication, I don’t mean ‘and den da bitch done dis, and den da bitch done dat.’”

But, wait! There’s more! During a sentencing hearing he allegedly said:

“Are you familiar with the phrase, if you lay down with dogs, you wake up with fleas? … So now you have laid down twice with dogs, but you have woken up with two lovely children, probably two lovely children I’m betting you were probably not planning on. And for the cost of three shiny quarters in any bathroom in any rest stop in Pennsylvania, you probably could have gone a different direction.”

At that same hearing he also allegedly went off about his lack of compassion:

“I was a [prosecutor] for 20 years, and for the last 13 years, all I did was dead body cases, dead body, dead body, dead body. For the last eight years, I ran the homicide unit. If I had a nickel for every picture of a dead person I looked at on my desk while I was eating a turkey sandwich, I could retire right now and be a rich man. As a result of these experiences, there is no milk of human kindness left in these veins. It is just too much death. So what that means for you is, the take away is this: If I ever see you again in my courtroom for a probation violation, the story ends with you in a red jumpsuit.”

And at a different sentencing hearing, Tranquilli allegedly told a defendant, “So if you don’t show up in 30 days, you have violated my probation, and I’m going to cast you down against the Sodomites, all right, in state prison.”

Not too surprising then that the ethics complaint says the judge failed to promote public confidence in the judiciary; manifested bias or prejudice in the performance of his duties; and failed to conduct himself in a patient, dignified, and courteous manner. Tranquilli was previously placed on administrative duties after the complaints about his behavior first came to light.


headshotKathryn 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).

Walking In The Footsteps Of Success

As I come close to rounding out my first year in the legal profession after law school, I find myself reflecting on all I’ve learned from my colleagues at Balestriere Fariello. Three of those things, which seem intuitive now but certainly were not to me a year ago, come to mind often.

Zealous Advocacy Includes Saying Nothing

In law school, we were taught to pursue all leads and fight to the death for our hypothetical clients — that “zealous advocacy” is what’s required. But nobody really defined that phrase. In classes, we were taught to list all applicable rules and facts and show our work on top of that. We were rewarded, most often, for saying more rather than less. In practice, I’ve learned that saying less can be just as effective — if not more effective — than laying out the litany of reasons why your client’s motion or brief should prevail. When preparing cases for clients, I found myself growing attached to the theory of a case and wanting to chase it down actively at all (academic) costs. But I’ve learned that this, occasionally if not often, is unwise.

My colleagues are tenacious litigators who I’ve seen and heard argue the merits of cases up one side and down the other. I was surprised the first time I saw one of them put down the sword, as it were. Eager to learn about litigation strategy, I asked why they chose to let a certain point rest. One thing became clear: it is prudent to say nothing when saying something would not advance your cause. Whether this decision is made to avoid needless repetition or to do a kindness to (i.e., avoid annoying) the court, I have come to see the value in saying nothing as a tactical decision, even when you want to and could say everything.

Don’t Reinvent The Wheel

The time constraints of the working world, especially at my busy office, are a strong reminder that the law is a legacy. As a newly minted practitioner, it’s easy to find myself swimming in the details of the work. But my colleagues have been kind to remind me not to reinvent the wheel. Almost any type of document I could draft for almost any case has been drafted, in whole or in part, by someone before me — and probably even by someone I work with. This is not only timesaving, but also grounding. Walking in the footsteps of those who have already succeeded is encouraging and totally practical.

Details Are Everything, Always

I mentioned my colleagues are tenacious litigators. They apply this tenacity to every aspect of their practice, whether it be early-stage mock trials or meticulous drafting from the first draft. They have taught me that details are everything, always. They set the bar high, and for good reason. While balancing deadlines, it can be tempting to let little things slide to save the big picture, but this is almost always an error. Any number of metaphors apply, but the most resonant to me is a landslide — one loose stone could result in an entire hillside collapsing. Details are everything, always, especially because litigation teams at my firm are highly collaborative. The work I do, even if a quick internal memo, could turn into the basis for a complaint and a great result for a client. If the details of my work aren’t impeccable, I could be setting up my colleagues or my future self for trouble — or, just as bad, major inconvenience and wasted time.

These three insights are certainly not all I’ve gleaned from the past year in the law, but even if they were, I’d say I was in good shape. Learning to walk in the footsteps of success is an invaluable skill, and one I shall keep learning as I go.


Megan E. McKenzie, a recent graduate of Georgetown University Law Center, works at Balestriere Fariello while her admission to the bar is pending. She works with her colleagues on all aspects of domestic and international complex litigation, arbitration, appeals, and investigations. You can reach her by email at megan.e.mckenzie@balestrierefariello.com

Trump May Finally Go After Those Hedge Fund Guys

Morning Docket: 08.14.20

* A lawsuit challenging New York’s quarantine has been dismissed partly because an Arizona woman did not suffer harm by not being able to help a New York friend move. The judge obviously doesn’t know how fun assembling Ikea furniture can be… [New York Daily News]

* Georgia’s governor has withdrawn a lawsuit challenging a mask mandate instituted by the Mayor of Atlanta. [CNN]

* Claims of sexual impropriety are roiling the Texas Supreme Court. [Texas Lawyer]

* An Ohio lawyer has been granted the green light to provide financial planning services along with legal representation in certain circumstances. [Bloomberg Law]

* Carole Baskin of Tiger King fame has been served with papers related to a lawsuit about her missing former husband. Baskin took a selfie with the process server, maybe “service selfies” will trend on insta one day… [CBS News]


Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Even The Judiciary Isn’t Immune From Anti-Mask Sentiment — See Also

Wearing A Mask Is Apparently Too Hard For This Judge: And he’s apparently ordering lawyers appearing in his court to de-mask.

Are You Going To Hit Your Hours Requirement? Or have partners taken all your hours.

What’s Going On With The Florida Bar Exam? Who’s to say, really? I mean it’s only happening next week.

From Clerk To Federal Judge In One Year? That seems… deeply problematic.

Birthers Shoot Their Shot At Kamala Harris: Yes, it is a racist attack.

National College Athletes Bill Of Rights Is Fine In Theory, But Not Practical

Florida is set to make effective, in July 2021, a law that will allow college athletes to earn money based on the commercial exploitation of their names, images, and likenesses. Now, Congress is eyeing federal involvement.

Senators Cory Booker and Richard Blumenthal have spearheaded an effort to create a national “College Athletes Bill of Rights,” which includes the creation of a federal right for all college athletes, irrespective of the state in which they perform their services, to market their publicity rights in individual and group licensing deals. However, the College Athletes Bill of Rights goes much further than Florida’s name, image, and likeness law.

Booker and Blumenthal, along with senators Kamala Harris, Bernie Sanders, Chris Murphy, and a few others (none of whom are Republican) also envision a ban on restrictions, with athletes transferring from one school to another, comprehensive health care coverage for sport-related injuries and, the biggest ask, revenue-sharing agreements with the NCAA, conferences, and universities that result in what the senators are referring to as “fair and equitable compensation.”

Whereas allowing college athletes the ability to market their names, images, and likenesses would come at no cost to the universities, conferences and the NCAA, providing those same athletes with a share of revenue and other benefits will likely require major adjustments to the college sports ecosystem. In Florida, a focused proposal concerning name, image, and likeness rights received bipartisan support. It is unlikely that the College Athletes Bill of Rights will be able to accomplish the same on the federal level.

While there are few details regarding the specifics of the College Athletes Bill of Rights, it is fair to assume that the revenue-sharing concept will be applied for athletes in every sport, not just the revenue-generating sport of football and sometimes basketball.

Interestingly, there is somewhat of a revenue-sharing system currently in place; however, the sharing occurs by and among the various sports programs as opposed to the players being a party to the economic relationship. Take Louisiana State University as an example. In 2018, LSU’s football program generated more than $100 million of the $145 million in revenue earned by the athletic department. The basketball and baseball programs added less than $1 million in profit, and literally every other sports program lost money for the university. The athletic department, as a whole, profited to the tune of $8 million, and the athletic programs that lost money were funded by the gains received primarily from the football program.

There is an argument to be made that too much money is being spent on expensive coaching contracts and athletics facilities. However, if athletes across the board were to receive a share of revenue, even in those sports that are economically in the red, then athletic programs are in for a lot of financial trouble irrespective as to whether a couple million dollars are trimmed from coaching contracts, particularly in a world where a virus like COVID-19 has proven to have the capacity to postpone entire football seasons in certain conferences. Furthermore, where will the money come from to pay for the comprehensive health care coverage, which will likely be required for every athlete in every sport, as well as the “commensurate lifetime scholarships” referenced by Booker and Blumenthal, but not yet fleshed out?

The result of turning a bill like the College Athletes Bill of Rights into a law could be the unintended consequence of eradicating the vast majority of college sports and primarily leaving football, basketball and maybe baseball as sanctioned teams. The rest of the current sport programs could turn into club sports, which would unfortunately diminish their standing on campus and be an overall negative consequences for the vast number of college athletes.


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.

How Open Source Software Is Changing IP Risk In The Software Supply Chain

Virtually all software today has open source components, and open source software has been integrated into practically every sector and industry.
The use of open source software is now so widespread that many companies are unaware of how and where they are using it, and would be unable to identify all their open source code if asked to do so.

While this proliferation is a testament to open source’s success, it also gives rise to unique business and legal challenges, particularly in the area of intellectual property. If a company cannot even find all of its open source code or identify its open source dependencies, how are to ensure that they are remaining compliant with open source licenses and protecting themselves from business or reputational risk?

To address these unique and unprecedented IP challenges, we present a new white paper, A New Wave of IP Risk: How Open Source Software is Changing IP Risk in the Software Supply Chain.

In this paper, brought to you in partnership with our friends at FOSSA, we will examine the most common IP risks that arise from the use of open source software today, including:

  • Copyright infringement
  • Patent infringement,
  • Reputational risk
  • Exposure of IP secrets
  • The impact on the partner/customer relationship

Download your free copy here:

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