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As remote work has become the new normal, more and more companies are implementing applications like Slack, Zoom, and MS Teams for operational efficiency.  As a result, data is taking on new formats, and is growing at exponential rates.  From an eDiscovery standpoint, it’s hard to keep up.

Whether you are an attorney or consultant advising your corporate clients, or an in-house legal professional, please join us on August 12th at 2 p.m. ET / 11 a.m. PT to find out how to best prepare for eDiscovery in the cloud.

You’ll learn:

• The unique challenges of cloud data
• How to form a proactive data management plan for cloud tools
• What the options are for cloud-based eDiscovery
• Best practices for retention and preservation

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In March, our world was unexpectedly turned upside down when the pandemic hit, and the world as we knew it is now a thing of the past. COVID-19 has touched nearly all aspects of our lives, from our social gatherings (or lack thereof) and how we shop to where we work and how we use technology to get work done. How many of these changes are merely temporary, and how many are permanent, remains to be seen.

The legal profession has not been immune from this new world order. The majority of lawyers are working remotely at least some of the time, and many large and mid-sized firms have announced that work-from-home policies are in place until at least the end of the year.

As a result, remote working tools are being used more often than ever before. Courts are conducting jury trials and hearings via videoconferencing. Lawyers are using cloud-based legal software for document management, e-signatures, billing, invoicing, payment processing, communication and collaboration with clients and colleagues, and much more. Because of COVID-19, the legal profession is rapidly adapting to technology at rates never before seen.

Remote Working Becomes The Norm

This trend is borne out by findings from the most recent survey on the impact of COVID-19 on the legal profession conducted by MyCase (note that I am the legal technology evangelist with MyCase). As part of the survey, respondents shared some of the new procedures and technologies that their firms had implemented in response to the pandemic:

“Contactless service. Clients need not travel to our office, and can do everything remotely.” -Alan, DC Metro Immigration

“Offering remote consultations to our clients.” -Deborah, Pittsburgh Family Law Services, PC

“We have all staff working at home, all client meetings are virtual, using online signatures and notarization. We’re making it as easy as possible for clients.” -Michelle, Howser & Associates

Remote working and the technology that supports it have become the “new normal” for law firms. Now that lawyers have gotten used to using these tools, they’ve begun to realize — and appreciate — the many benefits that they offer, including increased convenience, flexibility, and cost-effectiveness.

Is This A Lasting Trend? One Survey Says: Yes!

This newfound technology adoption by lawyers begs the question: Is the pandemic permanently changing our profession? The answer, according to the results of a number of recent surveys and the opinions of experts, is a resounding “yes.”

For example, there’s the recent poll conducted during an Association of Legal Administrators webinar. The legal administrators surveyed overwhelmingly believed that many of the effects of COVID-19 on the way that law firms operated and conducted business were not temporary and would have a long-term impact.

Notably, as explained by my fellow Above the Law legal technology columnist, Bob Ambrogi, the poll results showed that of the legal administrators who responded to the poll:

91% believe the changes in working practices brought about by the pandemic, including more remote working, are permanent.

Three-quarters of them believe that the current situation will accelerate law firms’ plans to change their back-office services structure.

And 74% either agree or strongly agree that COVID-19 has made their staff more willing to change their working practices.

The Experts Weigh In

But what about the experts? Do they think the changes wrought by the pandemic will be temporary or permanent? According to experts interviewed for a recent ABA Journal article, many of the changes are expected to be long lasting — in some cases, permanent.

For example, videoconferencing is widely believed to be one of the COVID-19 trends that will be most likely to stick once the pandemic is over. Lawyers have adopted to Zoom like fish take to water, in part because the convenience and cost savings of videoconferencing are highly appealing. That’s why, according to Texas Supreme Court Chief Justice Nathan L. Hecht, videoconferencing is here to stay:

Hecht, who is also president of the Conference of Chief Justices, expresses confidence videostreaming technology will be used in Texas courts even after the current pandemic. He predicts other states will likely do the same because of the benefits the technology provides lawyers and court personnel who live in geographically large states or rural areas.

Similarly, remote working and the tools needed to facilitate it aren’t going anywhere either. One law firm shareholder explained that as the profession becomes increasingly accustomed to remote meetings, the resistance to this concept will fade, since remote working tools make it possible for lawyers to get work done from any location, even in the face of uncertainty:

Scott A. Forman, a Miami-based Littler shareholder, says he expects remote litigation will continue beyond COVID-19. “I anticipate that folks who were resistant to remote meetings and feeling that everything needed to be in person, including depositions, that that resistance will dissipate as time goes on and people get used to this new normal,” Forman says…Tools that make it easy for lawyers at a firm to collaborate while working from home also have gained traction.

Similarly, cloud-based software has continued to gain traction as a result of the pandemic, since it makes secure and streamlined remote working possible. Law firms that were already in the cloud were able to easily transition to remote work when the pandemic hit, while many firms using premises-based software were forced to begin the transition to cloud-based software so that their employees could securely communicate and collaborate. As one law firm partner explained, moving to the cloud is no longer an option — it’s a necessity:

Michael Moradzadeh, founding partner and CEO of Rimon Law, says “it’s reckless in some ways” for a law firm not to be cloud-based in a climate where remote working is essential… “I think this painful experience will push a lot of people to ask, ‘Why aren’t we in the cloud?’” says Moradzadeh, who is based in Silicon Valley. “The argument that it is not secure is just outdated at this point.”

Last, but not least, there’s one final piece of evidence that remote working will be the norm post-pandemic. Not only is remote working easily accomplished using cloud computing software, it also saves money. After all, real estate is one of the highest overhead costs firms face — and the fewer employees working in the office, the less space a firm needs. Kent Zimmermann, a consultant at Zeughauser Group who advises law firm leaders, emphasized that the potential cost savings resulting from a larger remote workforce post-pandemic is a very enticing inducement for many law firms:

Zimmermann … has spoken to several law firm managing partners and chairs who say they think their firms will occupy less real estate moving forward, perhaps materially less. “There was already some movement in that direction, but I think this will accelerate momentum toward less big corner offices [and] more flexible arrangements in more firms for more people,” Zimmermann says.

So are the short-term changes embraced by law firms because of the pandemic here for the long haul? According to the experts, all signs point to yes. I happen to agree with them. Of course, only time will tell if we’re right. What do you think? Do you agree?

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Nicole Black is a Rochester, New York attorney and Director of Business and Community Relations at MyCase, web-based law practice management software. She’s been blogging since 2005, has written a weekly column for the Daily Record since 2007, is the author of Cloud Computing for Lawyers, co-authors Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York. She’s easily distracted by the potential of bright and shiny tech gadgets, along with good food and wine. You can follow her on Twitter at @nikiblack and she can be reached at niki.black@mycase.com.

Who could have seen this coming? Well, pretty much everyone.

Back in March, the law firm of HWL Ebsworth, an Australian firm with over 850 attorneys and 1,250 employees total, refused to close their offices amid the growing pandemic. As Roll On Friday reported at the time, an insider at the firm said, “I suspect that one of the reasons the firm is reluctant to let people work from home is the lack of proper IT infrastructure.” The firm tried to publicly push the blame onto mental health concerns, saying of working from home that “social isolation and operating within less than optimal working conditions” had the “potential to increase stress levels.” I guess the firm doesn’t think forced potential exposure to a deadly virus is stressful at all. [Insert all the side eye.]

The firm even went so far as to say they wouldn’t firm “blindly” follow other firms shutting their offices “like a lemming.” Whatever the opposite of compassion is, that’s what HWL Ebsworth is showing for their employees that had to trudge to the office daily when plenty of giant law firms are showing just how straightforward a WFH policy can be in the legal industry.

In any event, the coronavirus has once again shown that it doesn’t care how badly you wish for it to go away; if you do stupid things (looking at you Florida), there will be consequences. As Roll On Friday reports, there’s been a COVID-19 outbreak linked to the firm that has public health officials concerned.

On 6 July, an  HWL employee tested positive for coronavirus and a floor of the firm’s Melbourne office was closed. Staff were sent home as the premises were deep-cleaned, and two more employees were confirmed as having been infected.

[Managing partner Juan] Martinez told staff they were expected to return the following Monday “barring any issues”, according to the Australian Financial Review. He said “it is not an outbreak that originated from our office, and it didn’t arise as a result of our operating practices”.

But then three more cases were detected, bringing the total to six so far, and Victoria health authorities publicly named the firm’s Melbourne office as a ‘key outbreak’ site.

This forced the firm’s hand, and they announced employees could work from home if they wanted. But that might have been too little, too late. Employees say they were left in the dark as the infections spread, and now the firm is under investigation:

But a number of employees claimed they were kept in the dark by the firm about the Covid cases, and only found out about the infections after the health chief’s announcement, it was reported. Worksafe Victoria, the statutory body which assesses workplace safety in the region, confirmed it is now investigating the firm.

It’s a shame it took people actually getting sick for the firm to make the smart decision.

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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).

And so it begins.

With over 20 jurisdictions holding in-person bar exams this week, many with nominal adherence to basic public health guidelines, it was inevitable that we’d learn that the novel coronavirus also managed to sit for the exam. We’re now hearing that Colorado is the lucky state to have the first news of a positive COVID patient taking the exam:

Colorado had an opportunity to join the enlightened Western states of Utah, Washington, and Oregon and just grant diploma privilege, but decided instead to go forward and characterize advocates as lazy people who “don’t want to take the exam.” In reality, the applicants pushing to call off the possible superspreader event were people who “didn’t want to expose themselves to a deadly virus.”

This will not turn out to be an isolated incident. We have bar exams relying on spot temperature checks despite knowing for months that the virus is highly contagious in pre-symptomatic patients. Those taking the test in other states assuredly exposed themselves too. And unfortunately they may not even get the heads up the Colorado applicants have.

Hopefully, the use of masks and copious hand washing kept the threat contained and no one else is going to get sick. But the unnecessary terror that the bar examiners just heaped upon 200 or so applicants is flat unacceptable.

And, yes, the blame should fall on the Colorado Supreme Court and its bar examiners. Given the timing, it’s most likely that this anonymous student knew they were positive when they took the test and that was an ill-advised and dangerous move, but consider the hand they were dealt. The powers-that-be who are supposed to be protecting the profession stacked the incentives this way. They’re the ones who said, “Take this test now or you won’t be able to get your license in time to start work… in a global economic crisis where attorneys are getting furloughed and laid off.” In that universe, variations of “we told people not to come if they were sick” are basically the echoes of a bully declaring “stop hitting yourself.”

Generally speaking, it’s a cop out move to place all the blame on the least powerful actor for carrying through on a bad decision set up by the policies of the more powerful. The powerful should bear that responsibility. It’s a lesson the rest of us learned from Spider-Man.

In the meantime, everyone who took the bar exam this week needs to quarantine themselves from friends and loved ones now. After persevering through the most grueling examination of their lives, they can’t even trust themselves not to infect people they care about. That’s their prize for playing their parts in this hazing ritual.

All this risk and cruelty when there is no data supporting the necessity of the bar exam. It’s just a f**king game to these people.

Earlier: Amid Infection Spike, State Supreme Court Doubles Down On July In-Person Exam
Bar Exam Spokesperson Tells Newspaper That Folks Worried About Health Are Just Lazy
Hey, Law School Students! State Offering $18/Hour To Sit In The Middle Of COVID Superspreader Event!

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Divorce isn’t known to bring out the best in people. And in some cases, it brings out the pure blind animus that animates certain Martin Lawrence movies. This seems the only possible explanation of Cooper vs. Hohn, formerly Cooper-Hohn vs. Cooper-Hohn.

You see, after Jamie Cooper cured her husband Chris Hohn of being a bastard, he founded a hedge fund that pledged one-third of its management fee income to a charity dedicated to helping children, hence it’s not-at-all-creepy name: The Children’s Investment Fund. Some years back, he stopped doing this, ostensibly because it had enough money to solve all problems faced by children, although coincidental evidence suggests it had more to do with the fact that the Cooper-Hohns were going to go back to being Cooper and Hohn.

* Justice Ruth Bader Ginsburg is resting comfortably in a New York City hospital after a non-surgical procedure. Wishing RBG a speedy recovery! [CNN]

* A new lawsuit aims to break up an alleged monopoly in the cheerleading business. This would make a great sequel to Bring It On… [Atlanta Business Chronicle]

* Lisa Bloom, an attorney with links to Harvey Weinstein, is in hot water over allegations that she mishandled millions of dollars for autistic clients. [Daily Beast]

* A Kentucky attorney is accused of “monstrous” sexual misconduct in a new lawsuit filed by former employees. [Courier Journal]

* Ashley Judd has been given the green light to pursue sexual harassment claims against Harvey Weinstein. [New York Times]

* Looks like retailer J.C. Penny will be purchased as a result of its reorganization in bankruptcy. Hopefully there will be some great sales before the restructuring is through… [Washington Post]

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

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to data collected by Law.com for its 2020 Am Law 100 ranking, which New York-based Am Law 100 firms saw declining revenue in 2019?

Hint: Of the NY Am Law 100 firms, five firms — all with really strong reputations — had a downtick last year.

See the answer on the next page.

I had previously assumed the Dutch were just like us, only way better at tulip horticulture. After reviewing the recent proposed surrogacy laws in the Netherlands, however, I know that we are living in entirely different universes.

In April 2020 — which, in COVID-19 time, both feels like yesterday and 20 years ago — the Dutch government published one part of a draft law on surrogacy. That part contained provisions that, while in part differ from most American norms, were largely in line with other European countries’ skepticism over surrogacy.

Part I. New Dutch Surrogacy Standards. The first part of the April 2020 proposed surrogacy legal overhaul in the Netherlands provides some pretty normal protections, at least by American standards. Those include the following requirements for surrogacy arrangements:

• Intended parent(s) and surrogate must have a written agreement. (Of course.)
• Both parties must receive psychological counseling. (Never a bad idea.)
• Both parties must have independent legal counsel. (Good, yes. Attorneys are heroes.)
• The intended parents must be recognized as the legal parents of the child upon birth and listed on the child’s birth certificate. (Great!)

But it also included some uncommon provisions, by American standards:

• The child must have access to the personal information of the donor(s). (There is a bubbling movement and debate in the United States on the rights of donor-conceived children to know their genetic history, but the movement has been slow, and the legal changes have lacked any real grip so far.)
• The court must approve the agreement before conception. (Oklahoma’s recent surrogacy law mandates this, but nowhere else in the United States does.)
• The surrogate has the right — within six weeks after the birth — to send a petition to the court because she has changed her mind and intends to keep the child. (… record scratch. Wait, what? The ability for a birth mom to change her mind is a basic requirement with adoptions, but clearly there is a wide variance in thought between our countries as to how comparable surrogacy is to adoption.)

Part II. Criminalization. OK. That last bullet point might have been alarming. But now let’s talk about the July 2020 portion of the proposed law. It is truly frightening. Paid surrogacy is essentially a criminal offense, even if done abroad in a country where it’s completely legal. The draft law states that:

• It is unlawful to persuade a woman to become a surrogate by promising her a “significant advantage.” Significant advantage is explained as anything that provides a benefit to her beyond mere reimbursement of certain surrogacy-created expenses.
• It is unlawful for a surrogate to ask for or receive a significant advantage.
• This criminal code has extraterritorial effect and will be effective whether the act is committed in the Netherlands or abroad, if a significant advantage is offered or received by a Dutch citizen or a Dutch resident permit holder, and regardless of when this crime was committed.

Commodities Or Extra Wanted? The drafters say that the provisions are necessary to protect women from exploitation and to ensure that children are not commodified. I’m on board with those two interests, of course, but is there really a connection between being a surrogate or being delivered by a surrogate, and either being exploited or commodified?

Fortunately, I was able to read (via the Google translate) a well-researched and well-reasoned response that was submitted to the Netherlands’ government by Dutch attorney Wilma Eusman. Eusman explained that there’s insufficient scientific evidence to establish a connection between being delivered by a surrogate and suffering any mental health issues or other damage associated with being “commodified.”

She suggested an alternative and more accurate theory, “growing up knowing that your parents have paid for the cost and inconvenience of the woman who was willing to help them achieve their desire to have a child can give you an extra sense of self-worth, knowing how wanted you are.” Eusman then pointed to large-scale studies following children born via surrogacy, which reflect that they did not have negative feelings about being delivered by a surrogate. (Check out this podcast interview with the brilliant young Yale-student Malina Simard-Halm, as she shares her experience as a surrogate-born person.)

Does This “Protect” Women? The draft law also insults women who have been surrogates and were also comfortable receiving compensation for the intense nine-month commitment. The Dutch drafters explain that if a woman is compensated, she may be compelled to take risks that she would not otherwise take due to financial considerations, she may withhold medically relevant information, and her participation may not be completely voluntary.

Of course, exploitation is possible. But knowing hundreds of women who have affirmatively volunteered to be a surrogate and received compensation, their impetus has been far from being powerless pawns of exploitation. Inevitably, in my experience in the United States, the surrogate is a strong and driven woman. While there can be multiple motivations, the common thread is a belief in the depth and beauty of parenthood as a human experience, and wanting to help others fulfill that dream. (Check out these podcast interviews with surrogates about their experiences — here, here, or here.) Being compensated helps the surrogates’ families, and here in the Unted States, no one is credibly accusing these women of lying about their medical background or participating involuntarily.

Eusman’s response identifies many of the flaws in such a law, where the government tells women what they can and cannot choose to do with their bodies. Eusman points out that the government is fine with everyone else in the arrangement being compensated — the attorneys, the psychologists, etc. — but not the woman who is actually carrying the child. She also points out that Dutch citizens are allowed to volunteer for experimental medical trials — and get paid. Clearly, some people are more equal than others when they decide to risk their health and be compensated for it. In fact, as Eusman pointed out, banning a surrogate from compensation results in the exact opposite of the proposed “protection” of her, putting her at a legally required disadvantage.

Encouraging Opaque, Underground Surrogacy. Eusman identified another major problem with the proposed legislation. Because criminalization is based on the ability to show and prove that the surrogate received a “significant advantage,” it punishes those who go to a country where surrogacy is transparent, well done, and safely practiced — like Canada and the United States. Instead, the law pushes hopeful parents to countries where the process is deliberately murky, and therefore not easy to prove that the surrogate received compensation. Eusman pointed out that these are the countries where there is, in fact, a higher risk of commodification and exploitation.

Eusman proposed an alternative: the law should be revised to set standards to define jurisdictions where surrogacy is safely practiced, and permit Dutch citizens to be able to complete their families in those countries, if not the Netherlands itself.

Here’s rooting for those in power in the Netherlands to recognize the truth in Eusman’s words, and to change course for everyone’s sake.

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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.