Category: News Feeds

So, what, exactly is going on with Biglaw bonuses? After the September rash of special COVID-19 appreciation bonuses, we’ve gone silent. After Cravath followed Kirkland into the whole “let’s just wait till the end of the year” camp, no other firm has stepped up with a Fall bonus. But speculation continues among the rank and file associates as to why the firms are delaying anteing up market bonuses.

A sort of answer came when Paul Weiss told their associates no Fall bonuses were coming. Firm Chair Brad Karp said special bonuses would not be “appropriate” and “[p]roviding a special cash reward in direct response to the pandemic does not feel right at this time.”

Above the Law has also heard murmurings from tipsters at other elite Biglaw firms that espouse a similar logic:

[H]ave heard from a few partners who would be in the know that partnership view is that giving COVID bonuses would not be a great look in this economic / social climate

I’m sorry, whaaaaa? Are these firms also not collecting on outstanding bills during a pandemic? Are they donating all of the firm’s profits this year to charities supporting those hit hard by COVID-19? Or is the money sitting in the firms’s coffers rather than being distributed to people who actually did the work? Cool. Cool. Coo-coo-cool.

It’s just so backwards for the top of the Biglaw pyramid to suggest giving money to the bottom rungs isn’t a “good look.” Real talk: if the money isn’t going to employees, it just gets divvied up between the (equity) partners. And here’s the thing, for the most part, Biglaw firms are doing pretty well during the pandemic, so there’s even more money to go around. In fact, revenue went up in the first half of 2020 over 2019, due, in part to annual rate hikes, as Sara Randazzo writes for the Wall Street Journal:

At 125 firms surveyed by Wells Fargo Private Bank’s legal specialty group, revenue rose an average of 6.4% in the first half of the year, compared with a year earlier. With demand roughly the same from last year, according to Wells Fargo, the boost stemmed from annual hourly-rate increases and momentum from a lucrative 2019.

And net income is up even more than that — 25.6 percent — largely because of lower expenses like travel.

King & Spalding’s chair also told the Journal the firm is doing well during the pandemic:

“It’s like building bridges in wartime—you prefer a different environment,” said Robert Hays, the Atlanta-based chairman of King & Spalding LLP. “But we’ve built the bridge. So in terms of the business of the firm, we’re doing quite well.”

And no, King & Spalding isn’t one of the firms that have handed out special bonuses. And yes, insiders at the firm have absolutely noticed:

K&S Chairman has large picture and indicates that the firm is doing quite well, but has not mentioned sharing any largesse with associates (as most people assumed, all bonus announcement have ceased since the cravath announcement). The article also mentions that firms have saved millions on routine costs (i.e., travel). Further, despite the fact that cravath and kirkland partners pocket 4-5 million/year, they are unwilling to share 7.5k with the first year associate who is saddled in law school debt, working day and night in his/her tiny NYC apartment, and potentially taking care of kids or family simultaneously. Please make a bigger deal out of this. Demonstrates that law firm partners are making out like bandits in his pandemic and keeping all the record profits to themselves (outside of the dozen firms that are paying bonuses)

Biglaw firms can talk all they want about how appreciation bonuses are somehow gauche, but the truth is they’re making more money. (And obviously, this rant only applies to firms on strong financial footing. No firm should collapse itself trying to keep up with the Davis Polks of the legal world. Though note, just because firms are laying off people does not necessarily mean there are rocky financials.  As Janet Stanton, a New York-based legal consultant, said, “I think a lot of firms are using 2020 as cover to do things they wanted to do anyway.” If we want to talk about things that are a bad look, that’s a far better target.)

For those increasingly profitable firms, the question is really about who gets the benefits of those profits, not whether making money during a pandemic is a good look. And yes, maybe — hopefully — these firms will account for the fall bonuses their competitors have doled out at the end of the year. But, as they well know, times are hard out there. And while it’s true Biglaw associates are generally well-compensated, even absent bonuses, you have no idea what someone else is going through. Maybe an associate has a relative who’s facing eviction or is supporting an out-of-work family member, or any other hardship, and the bonus money now — not in 3-5 months from now — could make a difference.

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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).

I had a test recently — actually, the day of that time that I was coughing — I coughed twice, actually, and I was clearing my throat — I had a test maybe two hours earlier, it came back yesterday, and I’m negative. That’s the second one I’ve had since I was with the group in the White House, and unfortunately most of them came down with it, I feel very bad for them.I almost feel a little guilty. I was one of the few along with Jared and Ivanka that didn’t, but so far I don’t, and I’ll go back and get tested again on Friday, and I’ll be out of the woods.

— Rudy Giuliani, who currently serves as President Donald Trump’s personal attorney, offering some insight on his COVID-19 test results. Earlier this week, Giuliani coughed his way through an interview on Fox News, while admitting, “I don’t wear masks as much as probably I should.” Giuliani says he’s been prescribed hydroxychloroquine as a preventative measure.

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

For survivors of domestic violence, legal assistance can change – or even save – a life. This is especially true for women living in poverty during the COVID-19 pandemic. We spoke with Hamra Ahmad, Director of Law and Policy with Her Justice,  a nonprofit organization that stands with low-income women in New York City by training and mentoring volunteer lawyers to represent them and address individual and systemic barriers. 

Who does Her Justice serve? 

Our clients are the working poor with very limited resources. More than half are foreign-born, a quarter of them need interpreters in court, and most are mothers who are, or become, the heads of their households. We call them “survivors” for a reason; they have experienced unspeakable trauma and violence and have come through it because they are resilient, resourceful and focused on creating better futures for themselves and their children. 

What are some key concerns in the time of COVID-19?

The current crisis continues to create situations that force many of our clients over the edge of poverty and health – both mentally and physically. 

Many of them must engage with the New York City Family Courts to get legal relief that is critical to their safety and well-being, such as orders of protection, financial support from partners, or clear schedules for access to children, and the courts are operating with limited capacity.

Though remote access is essential, technology is often unaffordable for our clients. Paying for cell phones, often their only way to access the internet, is increasingly difficult. Without access to the internet or phone, and with libraries closed (where they previously used free computers) our clients can’t access food assistance, legal assistance, mental health support and health care for themselves and their children. Our clients need access to these services and support now more than ever. 

What don’t lawyers know about domestic violence that they should?

Domestic violence isn’t only physical abuse. Many of our clients experience financial abuse – the control by one intimate partner of the other’s access to economic resources, which diminishes the survivor’s capacity to support themselves and forces them to depend financially on the abuser. This makes it even more difficult for survivors to leave the relationship; for example, with a low credit score, women cannot rent an apartment, get a job or buy a house or car.

Survivors also often shoulder the burden of supporting children; fair and consistent child support can mean the difference between remaining safe and independent or returning to a dangerous situation. In ordinary times, there are more than 70,000 filings for child support in the New York City Family Courts each year. But during this crisis, court closures mean that many families have no access to this needed support.

Can you share tips for working with pro bono clients during the pandemic? 

Safety and confidentiality are key considerations when working with clients remotely. We encourage our staff and pro bono attorneys to ensure a safe, confidential, and comfortable meeting space and to ask the client if she is in a safe place where she has privacy. It’s critical to build trust, identify who you are, and make clear your role and expectations when you meet. For example, if you will be taking notes or typing, it’s important to explain why you are looking away from the camera. 

Determine the best method to speak with her – does she have a reliable phone number or access to a safe computer with a camera? Many clients have prepaid cell phones that may run out at a moment’s notice, so try to obtain a safe, alternate phone number. Can she be reached via a safe email address or through texting (using a secure, confidential platform)? Some clients, especially survivors of digital violence, may feel more comfortable communicating by phone rather than video. If she needs an interpreter, identify one available by the client’s preferred communication method (e.g., phone or video conference). 

Try to determine what times she is likely to be available, who else will be home, and if she can speak privately or if children will be around. It’s important to ask these questions before every conversation in which you anticipate discussing traumatic or sensitive matters.

If she doesn’t have safe access to technology, you may have to factor in time to send documents via regular mail to review and/or sign. Digital photographs of documents are acceptable as long as the quality is good enough for the document to be legible.

To learn more about Her Justice and how you can help, visit https://herjustice.org/. 

PLI has a number of resources that can prepare attorneys to assist domestic violence survivors, including the following on-demand programs: 

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About PLI

Practising Law Institute is a nonprofit learning organization dedicated to keeping attorneys and other professionals at the forefront of knowledge and expertise. PLI is chartered by the Regents of the University of the State of New York and was founded in 1933 by Harold P. Seligson. The organization provides the highest quality, accredited, continuing legal and professional education programs in a variety of formats which are delivered by more than 4,000 volunteer faculty including prominent lawyers, judges, investment bankers, accountants, corporate counsel, and U.S. and international government regulators. PLI publishes a comprehensive library of Treatises, Course Handbooks, Answer Books and Journals also available through the PLI PLUS online platform. The essence of PLI’s mission is its commitment to the pro bono community. View PLI’s upcoming live webcasts here. 

World War II was the deadliest armed conflict in world history. Almost all of the world’s countries were involved, and the United States played a major role. From the surprise attack at Pearl Harbor on December 7, 1941, to Japan’s eventual signing of formal surrender documents onboard the USS Missouri on September 2, 1945, U.S. troops fought and died during nearly four years of brutal combat in theaters that spanned the globe.

According to the National WWII Museum, the United States suffered 416,800 military deaths throughout the course of the conflict. With civilian deaths included, the U.S. lost 418,500 to World War II. At the time, there were hardly any American families that didn’t have members serving in uniform. By the end of WWII, almost everyone knew someone who had perished in the war effort.

The war deaths were an immediate, stinging reminder of the stakes. But the historical echoes of World War II reverberate even today, eight decades later. It profoundly changed the world.

There were those who spoke out against the U.S. becoming involved in WWII. Most of them fell silent after Pearl Harbor. Later, when it became clear what the Germans were doing to Jews under Nazi leadership, a virulent strain of right-wing Holocaust denial took root — it survives (and in some dark circles, thrives) to this day.

But even among those who thought the U.S. should stay out of World War II, or who denied the full depth of the atrocities committed by the Nazis, almost nobody simply denied that World War II was happening. Almost nobody downplayed its seriousness. Almost nobody said that we should not worry about WWII, because it was mostly killing only young men within a certain age range, and therefore the vast majority of Americans had nothing to worry about.

The first U.S. case of COVID-19 was reported in January, but the deaths did not begin to trickle in on a large scale until late March of this year. New York recorded its first COVID-19 death on March 14, and from there things quickly got worse. There were many days this spring when more than 2,000 Americans were dying of the virus every day. Throughout the summer and into the fall, there have been repeated spikes of more than 1,000 deaths per day.

As I write this, the United States has lost at least 209,600 people to the coronavirus. By the time this article goes to print, that number will have increased by hundreds, and by the time you’re reading it, that number likely will have increased by thousands. From mid-March of this year to early October, we lost half as many Americans to COVID-19 as we lost to WWII, with no end in sight.

In response to a previous column about COVID-19, I got a piece of hate mail. The medical examiner apparently deemed the cause of death of this correspondent’s loved one to be COVID-19, whereas he claimed, using some pretty colorful language, it was “dementia.” President Donald Trump, who is himself laid up with a case of COVID-19, was an early and vocal denier of the seriousness of the coronavirus, and his legions of unthinking supplicants were quick to follow suit. There are millions of these people in the U.S. They will defend the backward idea of COVID-19 being a hoax that every educated person everywhere is in on, even as they’re losing their own family members and as their president convalesces with the virus. I bet no grieving family members during WWII ever got together at a wake and waved away the seriousness of war because their loved one would have died of something else eventually anyway.

The deaths matter though. The U.S. was a very different place in the early 1940s. We had a smaller population. We had a president who was a tested leader, not one who is a failed, barely literate real estate developer. We were more united (maybe more united than at any other time in our national history). But then, just like now, we couldn’t simply soak up the deaths of hundreds of thousands of our countrymen without effect.

It took less than seven months to lose half as many Americans to COVID-19 as we lost to almost four years of WWII. Even if the deaths stopped today, this pandemic is going to change America. I just hope enough of us make the right decision as to how.

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Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

Another day, another court reminding the president that yes, the laws of this country really do apply to you, a**hole.

Well, the a**hole is implied. But strongly!

This morning the Second Circuit affirmed U.S. District Judge Victor Marrero’s dismissal of the president’s suit to quash a grand jury subpoena for his tax returns and business records issued by Manhattan District Attorney Cyrus Vance in August of 2019.

As the court notes drily, “A party would ordinarily challenge a subpoena like the one at issue by filing a motion to quash before the state court that had impaneled the grand jury.” But instead, the president sued in federal court, asserting his magic cloak of presidential immunity all the way up to the Supreme Court, where even Justices Kavanaugh and Gorsuch were forced to conclude that the emperor was wandering around with his prodigious flanks exposed.

Kicked back down to duke it out with the weapons of mere mortals, the president is now asserting that the subpoena is overbroad and was issued in bad faith. And because this is a federal 12(b)(6) motion, he’d like the court to simply accept those allegations as true facts.

Sadly the court declined to do so, noting that “A bare allegation of improper motive will not suffice if there is ‘an obvious alternative explanation for the conduct alleged.’” Nor was it persuaded, based on a single New York Times article, that the grand jury investigation begins and ends with the Michael Cohen hush money payment to Stormy Daniels, and thus subpoenas relating to anything else are out of bounds.

In a per curiam opinion, Judges Pierre Leval, Robert Katzmann, and Raymond Lohier wrote:

First, the President’s bare assertion that the scope of the grand jury’s investigation is limited only to certain payments made by Michael Cohen in 2016 amounts to nothing more than implausible speculation. Second, without the benefit of this linchpin assumption, all other allegations of overbreadth—based on the types of documents sought, the types of entities covered, and the time period covered by the subpoena, as well as the subpoena’s near identity to a prior Congressional subpoena—fall short of meeting the plausibility standard.

The court was no less skeptical of conclusory allegations of bad faith by Mr. Vance and a cabal of shady Democrats trying to take down the president.

We are similarly unpersuaded by the President’s reference to the ambient political motivations of third parties. To be sure, if the SAC plausibly alleged that the District Attorney sought to obtain the President’s tax returns for partisan political purposes, that would undoubtedly state a claim of bad faith. But as counsel to the President acknowledged at oral argument, the SAC nowhere alleges that the District Attorney was himself motivated by partisan considerations. The motivations of unspecified “Democrats” cannot be imputed to the District Attorney without specific factual allegations. And the fact that the Mazars subpoena was issued to a third-party custodian adds nothing to the President’s bad faith claim. Such subpoenas are routine.

And indeed, they are routine. Which is what makes this entire charade so infuriating — no one in Donald Trump’s orbit cared about prosecutorial overreach or overweening grand juries (or the FBI, or the FISA court, or coercive plea bargains, or “unmasking”) before Donald Trump and his pals wound up in the klieg lights. And while it’s perfectly legitimate to argue that the state has too much power, decrying bog standard exercises of that power which happen to involve the president is the epitome of bad faith.

Grand juries get to see whatever ever they want, and everyone knows it.

But in the meanwhile, the president will get to delay handing over his tax returns just a bit longer by filing another appeal to the Supreme Court. Vance has agreed to voluntarily stay compliance until the highest court rules, which likely means the grand jury will not be seeing the documents, much less dropping an indictment, until after the election.

And in this case … a delay is a win.

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Elizabeth Dye lives in Baltimore where she writes about law and politics.

Anyone who owns a computer has probably heard the name McAfee. McAfee, Inc. is one of the major software companies providing antivirus protection programs. The company was founded by John McAfee although he has not been associated with the company bearing his name for many years.

After he left his company, he lived a lavish lifestyle, purchasing cars, artwork and real estate. At his peak, John McAfee was believed to have a net worth of over $100 million.

But over the years, he has been connected with disturbing events. In 2009, he moved to Belize where he set up a laboratory to make antibiotics from plants found in the Belize jungle. However, the local authorities raided the lab suspecting he was manufacturing methamphetamine. No illegal drugs were found but the lab was shut down. McAfee claimed that police raid was a sham because he wouldn’t accept their demands for bribes.

In 2012, McAfee was considered a person of interest by Belizean authorities for the murder of one of his neighbors. He went into hiding and fled to Guatemala but was not charged with the murder. He was later deported to Miami. After meeting his wife there, they eventually settled in Lexington, Tennessee.

No one really knows McAfee’s net worth today although most internet rumors speculate that he is worth about $4 million. The drop might have been due to the Great Recession of 2008. But some speculate that McAfee may have squandered or hidden his assets in order to avoid a wrongful death lawsuit in connection with his neighbor’s murder.

McAfee later got involved in the cryptocurrency scene. He reportedly charged $105,000 per tweet to promote a cryptocurrency, possibly relying on his tech expertise and past success to establish credibility among investors. Some people suspected that he was involved in pump and dump schemes where he would promote a cryptocurrency, entice unknowing investors to purchase them, and then cash out leaving the investors with a worthless digital coin.

Last Monday, the Securities and Exchange Commission charged McAfee with promoting fraudulent initial coin offerings (ICO) to investors. McAfee allegedly promoted multiple ICOs on Twitter, pretending to be impartial and independent even though he was paid more than $23 million in digital assets for the promotions. When certain investors asked whether he was paid to promote the ICOs, McAfee allegedly denied receiving any compensation from the issuers.

And if that wasn’t bad enough, the Department of Justice Tax Division simultaneously announced that McAfee was indicted for criminal tax evasion and filing false tax returns. He was arrested in Spain and is awaiting extradition.

According to the indictment, McAfee earned millions of dollars between 2014 and 2018 from speaking engagements, consulting fees, selling the rights to his life story for a documentary, and from promoting cryptocurrencies. He also failed to file tax returns for those years and did not pay taxes.

He allegedly evaded taxes by depositing the money he earned into a third party’s bank account, and purchasing real estate and a car using a third party’s name.

McAfee knew this day was coming but decided to defy the tax man. In January 2019, McAfee made a video tweet stating that the IRS has convened a grand jury to decide whether he will be charged with tax crimes. He also openly states that he did not file income tax returns nor pay any income taxes.

Well, now we know why McAfee’s net worth is so low. He has little assets under his name.

So how did McAfee get the criminal investigation division of the IRS involved? Generally, they get involved when they suspect a taxpayer is engaging in fraud when preparing tax returns or avoiding payment. Hiding assets by putting them in another person’s name is a major red flag. So is providing false information to the IRS.

Also, tax crime indictments generally follow most white collar crime indictments such as securities fraud, money laundering, and embezzlement to name a few. This is usually because these investigations tend to take place at the same time. Income tax laws also apply to money earned from criminal activity. And it is believed that people who profit from crime are not going to report income or pay taxes on their illegally earned money.

The fact that the IRS has secured grand jury indictments means that they have investigated this matter for a substantial amount of time. A criminal investigation normally begins with the IRS’s criminal investigation division where special agents make a recommendation to the Department of Justice on whether to prosecute. The Department of Justice then makes its own decision. Generally, the Department of Justice prosecutes a small number of tax crime cases but the ones they pursue are very likely to result in sentencing. The 2019 IRS Annual Criminal Investigations Report stated that the agency conducted 1,500 tax crime investigations. Of those, 942 were prosecuted, and 848 resulted in sentencing.

McAfee has a lot to answer for in the next few months. Although I don’t think he will be tweeting about this anytime soon.

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Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

As we move closer and closer to the end of 2020, it seems that Biglaw firms are doing one or more of three things: 1) rolling back austerity measures instituted to survive the economic upheaval caused by the pandemic; 2) doling out COVID-19 appreciation bonuses (or refusing to do so); or 3) outsourcing or laying off their staffing roles to improve their operating efficiencies.

Today, we’ve received word that Bryan Cave Leighton Paisner has chosen the first option. After first assuring employees that the firm would be able to weather the storm without making associate or staff salary cuts, furloughs or layoffs, Bryan Cave proceeded to cut salaries for all employees making over $40,000 by 15 percent, conduct associate and staff layoffs, and even close an office. On the bright side, after laying out the bad news, BCLP decided to reduce its pay cuts to 7.5 percent, and now, the firm will be completely rolling back those compensation cuts. Here’s an excerpt from a memo that co-chairs Steve Baumer and Lisa Mayhew sent out yesterday:

Sources say that during the video conference, it was announced that they’d be “getting back a lot of the salary withheld” by the firm during the height of the pandemic. It’s also worth noting that Bryan Cave plans to fully fund its 2020 bonuses (and there’s of no mention of special fall bonuses, so we assume that’s completely off the table).

Congratulations to everyone at the firm. Let’s hope more firms are able to announce good news like this in the future.

If your firm or organization is slashing salaries or restoring previous cuts, 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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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.

The first day of the online bar exam held simultaneously in 19 jurisdictions across the country was an avoidable disaster that highlighted the failures in planning and contempt for the applicants that should — but probably won’t — raise the hackles of state legislatures around the country. With the second day behind us, now we have an opportunity to focus even more on the human toll exacted upon those who did successfully log into the exam.

And in many ways these are the cruelest jabs, because the technical meltdowns were the product of a company trying to honestly perform a task that was beyond the capability of anyone to pull off without serious hitches. What happened after that was intentional.

That is not acceptable. We’d previewed this back in July, when we were calling out in-person exams for their complete disregard of women, and bar examiners huffed and puffed about how unfair we were for calling attention to the anti-woman crucible they’d constructed in convention halls across America. But it turns out you can take the bar exam out of the stadia of misogyny but you can’t take the misogyny out of the bar exam. The people who don’t think hygiene products should be permitted in-person don’t magically improve their worldview when they design online testing experiences. Cecelia took her story public, but statistically she wasn’t the only one impacted this week. Being a woman shouldn’t be an additional hurdle to receiving your license and yet here we are.

Another tipster detailed having to urinate in the middle of the exam with nowhere to go. Earlier this year, we brought you the story of a plucky UK examinee who stared down the proctor while peeing in a bottle. This tipster, contending with fickle facial recognition software rather than a human being, couldn’t afford the luxury of using a bottle. After 20 minutes uncomfortably trying to hold it back, they ultimately decided to give in and then sit in urine for the last 30 minutes of the session.

First of all, this is hardcore. Second of all, this is basically torture. We read about forcing inmates to do this at Abu Gharib with shock and horror, but when it happens to a recent law school graduate because bar examiners can’t envision a licensing process that doesn’t involve petty acts of bodily control, there are people who shrug it off. Remember, when there was credible risk that people could decrypt the exam, bar examiners cited the honor system as the deterrent. If it’s good enough to stop that, it’s probably good enough to protect the integrity of the exam from someone walking out of frame for two minutes in the middle of a session.

One might have thought that the racial discrimination visited upon applicants — with facial recognition software consistently refusing to verify people of color — had already done all of its damage on the first day, but you’d be wrong. While many applicants discriminated against by bar exams insisting on a proctoring system with well-known problems were already forced to withdraw, others pushed on hoping that their flagged exams will be counted by the backend audit:

Honestly, I supported the online bar exam as a concept. While diploma privilege for this class is the most prudent response, I saw the online exam as at least superior to trying to kill everyone with a superspreader event. But I also naively thought that bar examiners would pull the plug on the idea if they ran into insurmountable roadblocks. Instead, they just pushed on and seemingly patted themselves on the back that their actions only derailed the careers of some applicants.

Nowhere is this mindset more evident than in Florida where they have yet to take the exam, but watched as this week’s exam descended into horror for so many and responded:

Though the board is aware of reports on social media discussing technical issues with ExamSoft in the 20 jurisdictions that utilized Examplify software for testing yesterday, ExamSoft has shared that 98% of all applicants that had downloaded an exam file started their exams as planned. Each jurisdiction testing on October 5-6 will have to reconcile how many of that overall 2% were no-shows (applicants who did not log-in to take the exam on exam day) and how to address those remaining who experienced technical issues.

In other words:

Two percent is… hundreds of people. It also cherry-picks people who started the exam as opposed to those who encountered trouble later. As we explained yesterday, there are always problems with an endeavor the size of the bar exam, but this process ensured that anyone who encountered a problem suffered catastrophic consequences instead of mere inconvenience. But Florida’s feeling good, y’all!

Finally, we have the questions themselves. Normally we’re reticent to indulge complaints about bar exam questions. Of course they’re irrelevant to the practice of law and constructed to be unnecessarily confusing — that’s the whole point of a generalist exam designed to ensure a set failure rate. But the outpouring of complaints over the exam questions is too great to overlook. The questions on this test — cobbled together by the NCBE and graciously provided to state bars for the online exam even while the NCBE hoarded the “good” questions for jurisdictions that agree to pushing applicants into COVID hotboxes — left many with the impression that the NCBE went out of its way to punish jurisdictions that spurned its in-person exam demands.

Reddit is overflowing with complaints about the questions. And, yes, many focus on the unnecessary hair-splitting — that feeling that at least two of the options are entirely correct answers and boggling at what the distinction might be — but that’s always the case. But this time around, examinees didn’t even recognize subject matter they were studying in these questions.

That’s the thing, it’s not unusally. Yeah, the specific subjects vary but it’s reasonably predictable which is why the bar prep industry exists. Thinking back to my bar exam, I don’t recall feeling confused about a single question. There were definitely questions that seemed poorly written, and designed to produce misleading answers and I might have tripped up on some of those but they were a subset of the exam as a whole and I figured I’d go 50-50 on those and be fine. That doesn’t seem to be the case at all here.

Thankfully, we have a way of verifying that this test was demonstrably more difficult:

But what about the theory that the NCBE intentionally gave the online bar exam worse questions in order to bolster their interest in in-person exams?

It sounds mildly conspiratorial until you remember how ferociously they pushed back against online exams in the first place, going so far as to promise to put out a blog explaining why online exams can never work. Then they just happened to swoop in and offer questions with the understanding that these questions could not be granted the same respect as their UBE? While commissioning polls to lobby state governments to go back to in-person exams? You’re not exactly in QAnon territory to think the NCBE’s heart wasn’t in providing the best experience for examinees.

The only way this gets better though is to hang onto the anger you feel right now. Don’t walk away from this and say, “Well, I passed so I guess I can put that behind me.” Enter this profession prepared to keep advocating for an end to this lunacy. Become the bar association leaders who push back. Become the legislators and state judges who push back. There does need to be a bar to protect the public from unqualified lawyers but keep defiantly declaring that this exam, run by this monopolistic cabal, isn’t the way to do it. Tighten accreditation procedures for law schools, adopt practice area certifications, make demonstrating competence more than a one-time hurdle — there are so many better options out there.

But this thing is dumb and cruel.

Earlier: Like COVID-19, Online Bar Exam Is A Disaster And Was Entirely Preventable
If You’re Menstruating Or Lactating During The Bar Exam You’re Screwed
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Much has been written about Judge Amy Coney Barrett, President Donald Trump’s recent Supreme Court nominee to fill the vacant seat left by Justice Ruth Bader Ginsburg’s tragic passing. While the majority of the skepticism expressed by critics has been about Barrett’s views on abortion, a lesser known issue is that Barrett has been associated with groups who are critical of in vitro fertilization, or IVF. Most concerning to assisted reproductive technology attorneys like myself is the potential that a Justice Barrett, on the Supreme Court, might someday have occasion to rule that embryos are entitled to the same constitutional rights as people who have been, like, born.

In 2006, Barrett was one of the signatories of a newspaper ad, in the form of a letter authored by a conservative group, stating that they would “defend the right to life from fertilization.” The ad, by St. Joseph County Right to Life, a group located in South Bend, Indiana, is annually purchased by the group on the anniversary of the issuance of the Supreme Court’s Roe v. Wade opinion.

Maybe They Weren’t Really Talking About IVF, Just Abortion?

In an interview a few years ago with the Executive Director of St. Joseph County Right to Life — Jackie Appleman — Applebaum clarified that even though the ad was published on the anniversary of Roe v. Wade, the group was *not* just opposed to abortion in the ad, and in fact that they did really mean that life begins at fertilization for all purposes. For Applebaum, there was no ambiguity about whether that included the forming of an embryo. Or that the embryos covered by the life-begins-at-fertilization position covered those embryos formed in a fertility clinic for the purposes of IVF. Applebaum explained that her group’s position included opposing the discarding of embryos, whether formed in utero or formed in a clinic, and that they were even in support of the criminalization of discarding embryos.

That’s pretty intense. For those who have struggled with infertility and had to turn to IVF, that would pretty much mean game over on the hopes of a genetically connected child. While it only takes one embryo to create a baby, in order to get to that point, numerous embryos are formed in order to find the ones with the best odds of conception. Without that “over production,” the already costly process of IVF would likely become astronomical. This is, of course, to say nothing of the fact that IVF has been a common fertility treatment for over 40 years now, and there are millions and millions of cryopreserved embryos out there currently.

What Would It Mean For A Supreme Court Justice To Believe That Life Begins At Fertilization?

When it comes to embryo legal issues and questions of constitutionality, I turned to one of the foremost experts on the topic, Tim Schlesinger. You may remember Schlesinger from earlier columns discussing the McQueen case in Missouri. There, a state law declared that life begins at conception, and that that specifically included zygotes, blastocysts, and embryos. A couple divorced after going through IVF together, and one spouse insisted on using the remaining embryos for conception, against her ex-husband’s wishes. Schlesinger successfully argued on behalf of the ex-husband that he had a constitutionally protected right under the Fifth and Fourteenth Amendments to *not* reproduce.

So, here’s the big question: Is Schlesinger concerned about Barrett joining the Supreme Court? In short, not immediately, at least with regard to IVF. To be sure, Schlesinger was very concerned that even though Barrett only signed onto one ad published by a right-to-life group, she might share similar views with that organization more broadly. However, even if Barrett shared the group’s beliefs, and even if she were confronted with a case presenting the question of “when life begins,” Schlesinger thought it was highly unlikely that a position irreconcilable with legal IVF procedures could ever attract the votes of five justices. At least, not for now. Of course, if other justices with similar views are replaced in the next few years, that could change.

Taking a step back, Schlesinger noted that whether a Justice Barrett would ever be in a situation where her personal beliefs could come into play, without relevant precedent to consider, is unlikely. As Schlesinger argued in the McQueen case, there are long-standing precedents that the Constitution protects a right to privacy that includes the right to reproduce, as well as the right not to reproduce. Schlesinger would argue that it impermissibly burdens the right to reproduce if the government forces a person to try to use all cryopreserved embryos, regardless of circumstances. Of course, there are already some cases that cut against that proposition, such as when embryos were formed specifically to preserve a woman’s fertility prior to cancer treatment, and then the male contributor later objected to her use of the embryos. And there’s no guarantee that a Justice Barrett would adhere to precedents involving a right to reproductive autonomy under the Constitution.

But Schlesinger also pointed out that to date, there has never been a final judgment in an appellate court holding that embryos constitute persons under the U.S. Constitution. In fact, court rulings consistently find that embryos are either purely property, or a form of property with special characteristics. Just last year, when the Supreme Court was asked to hear the Rooks case out of Colorado — which specifically asked questions like whether embryos are people — the Court declined to hear the case.

So where does that leave us? Simply put, with concerns. But those concerns aren’t enough to go on to conclude that a Justice Barrett will mean the end of IVF. Not yet, at least.

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Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

Another Biglaw firm finds itself out of the woods caused by the economic downturn brought on by COVID-19. After instituting austerity measures months ago, Sheppard Mullin — a firm that placed 54th on the latest Am Law 100 ranking — is rolling back those measures. But it’s not all good news.

In the spring, Sheppard Mullin went through two rounds of austerity measures, first furloughing staff and then cutting all of its employees’ salaries. Those cuts were initially 12 percent for associates, special counsel, and staff attorneys, while staff members making more than $90,000 had cuts of 10 percent and staff members making between $70,000 and $90,000 saw their salaries cut by 5 percent. The firm said the partner cuts would be at a “meaningfully greater percentage.” Then in August, it began the process of rolling back the austerity measures, and the amount of the salary cuts were reduced, but, at the time, the firm anticipated those reductions would last throughout 2020.

Yesterday, the firm held a town hall meeting and announced that those existing salary cuts would be rolled back. And, in their October 16th paychecks, employees would receive make-whole payments for their lost income:

That’s great news! But, as confirmed in a follow-up email from firm Chair, Guy Halgren (available in full on the next page), the firm will also be laying off some staff members:

Due to the pandemic and limited expected office usage for a continued period into the future, we have now determined we will not have jobs for 22 of the 44 furloughed people.  These positions will be eliminated as a reduction-in-force with a severance package and medical insurance paid through year-end.  The other 22 for whom we may have a job at an unknown point in the future will be offered the opportunity to opt into the same severance package on a voluntary basis. If they would rather stay on furlough we will continue to pay for their medical insurance at least through year-end.  The severance package is one week of salary per year of service, capped at 26 weeks and with a minimum of four weeks.  The Executive Committee’s decisions regarding our furloughed staff were difficult, but we have always strived to be transparent, and it is critical folks know where they stand.

As always, best of luck to those who find themselves out of work during this trying time.

If your firm or organization is slashing salaries or restoring previous cuts, 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).

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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).