Turning The Page

(Photo by Alex Wong/Getty Images)

Whew! The inauguration of our new president, and yes, I am saying “our” new president, happened without trauma or turmoil. We’ve had a lot of that recently, and whether your candidate won or lost the election, the sense of relief is probably palpable for most of us.

Remember a time when law practice was civil, both in practice and in courtesy? Can we, please, do that now? Be civil? Be courteous? Does it really take that much effort? Being a jerk is easy; being courteous and civil is sometimes hard, but it’s the right way to practice. I don’t think most lawyers would disagree. We have all been battered and bruised and now it’s time to work together to solve client problems. (Just a little mediator-speak here.)

One civility issue that arises often (and not necessarily from lawyers) is negative online reviews. What to do? How to respond? I have always thought that responding to negative online reviews becomes a pissing contest, the throwing of gas on an already-lit fire. Since so many people use online reviews to make choices, the issue is how to respond to them, if at all. Is it ethical to respond?

The ABA has issued an ethics opinion on that question. It says that the best practice is to stifle yourself and not respond at all, especially since you cannot defend yourself using any confidential information arising from the representation of any client. As Barbara Streisand found out years ago, it makes more sense to leave it alone than to further broadcast the issue.

I have a short memory for anything I read online unless I print it out or write it down or bookmark it. Do you know how many bookmarks I have that I have never looked at or even remembered that I bookmarked? A rhetorical question.

The fallback position, says the ABA, is to request a “takedown” from the website or search engine. Good luck with that. The last resort, the opinion says, is to respond online. The lawyer could invite the disgruntled commenter to talk privately about the issue (again, good luck with that, since many posters don’t use their true names) or state that the lawyer’s professional obligations preclude any online response. The latter may be “lawyering up,” but it’s what Model Rule 1.6(a) requires. Read Formal Opinion 406 here.

The past few years, there’s been a national conversation on aging and when it’s time for judges, as well as lawyers, to hang it up, to retire (I hate that word, my image is playing golf in a retirement community — I will now get emails from enraged duffers) or my preferred term, “redirect,” to do other things that will make use of the knowledge and skills gained in a lifetime of the law. The late Berkeley neurobiologist, Dr. Marian Diamond, used that term at an alumni event I attended, and I thought then (and now) it is more apt than current “retirement” usage. Diamond advocated “use it or lose it,” that the brain could continue to develop well into old age. It’s the concept of neuroplasticity (Google it).

Several years ago, the Ninth Circuit Wellness Committee helped to recruit three dozen judges, from magistrates to bankruptcy judges to circuit judges and several retirees, to participate in neuropsychological testing. Some were in their 50s, most in their late 60s, and the oldest was 87. The tests examined attention, memory, orientation, and other neuropsychological factors.

There’s no answer as to when a judge should retire. Where one judge might be in fine mental and physical fettle well into her 80s, another judge might show issues of cognitive decline in his 60s. Who gets to make that call? Blowback is inevitable, so is denial.

Is intemperate conduct on the bench a symptom of cognitive decline, or is it just that the judge is a nasty jurist, whose temperament is consistently unpleasant? How do you know what it might be? Lawyers talk, but are our opinions reliable?

The aging conversation is true for lawyers as well. Should there be a mandatory retirement age for lawyers? Should senior lawyers reduce their practices to make room for mentoring younger lawyers? What if a senior lawyer needs to continue to work for financial reasons? How do you justify cutting off an income stream at a certain age? Since more than one-half of this country’s lawyers are solos, how is cognitive decline to be determined?

The mental stimulation the law provides is a valid reason for continuing to have a life in the law. Interacting with people (we’ve found that Zoom is no replacement for in-person contact), analyzing fact patterns, and helping people are reasons to keep going, even if it’s not the same role. We need to use our vitality, our knowledge in various ways.

We can hopefully now concentrate on taming the virus, which, as I write this, has killed more than 400,000 of our fellow citizens. It’s as if the entire city of New Orleans, of Tulsa, of Tampa, of other cities across the country had been wiped out, obliterated not by a nuclear bomb but by a virus more deadly than thought possible, except for the scientists who forecast grim results from the beginning.

The virus is front and center on the new president’s agenda, as it should be. I heard that a former client of mine lost four family members in less than a week. Everyone, please mask up. It will not kill you to do so, but it may kill you if you don’t.


Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

Care About Biglaw Diversity? Well, Now You Can Bill For It

If a Biglaw firm cares about something then there’ll be a way to bill for it. The billable hour is more than just a way for a firm to collect money owed to them (though obvi, it’s that too) but it’s also a way to track what their employees are actually doing with their time. Billable hours — particularly at firms that have hours requirements for bonuses — assign a clear value to the time and effort that went into a particular task. Now a Biglaw firm is saying diversity is something worthwhile and will be counted in billable hours.

Hogan Lovells just announced approved Diversity & Inclusion activities — up to 50 hours — will be billable and count toward bonus thresholds. And they’ve got a pretty thorough list of what counts toward the credit:

The D&I activities eligible for billable credit:

  1. Leading or organizing D&I events or diversity network initiatives.
  2. Recruiting underrepresented professionals to the firm.
  3. Mentoring or sponsoring underrepresented professionals.
  4. Participating in allyship and action-oriented D&I programs that extend beyond education.
  5. Preparing for and participating in client-related D&I activity.
  6. Additional activities to be approved on a case-by-case basis.

HoLove’s Global Head of Diversity & Inclusion, Bendita Cynthia Malakia, explained the firm’s thinking on expanding what’s billable in this manner:

“The rationale behind establishing billable D&I credit is twofold: to ensure our underrepresented colleagues are credited for disproportionately undertaking diversity and inclusion activities, and to incentivize all our people to undertake activities that enhance diversity, equity, inclusion and belonging at the firm.”

And Susan Bright, Global Managing Partner for Diversity & Inclusion and Responsible Business, said:

“The introduction of D&I billable hour credit is part of our global strategy to create and maintain a diverse and inclusive working environment throughout our firm, and at the highest ranks. It also enables us to achieve our global minority and LGBT+ goals, and measure engagement at a substantive level. We recognize that diversity of all kinds creates better teams, and better serves our clients.”

The move to billable D&I hours is part of a larger diversity effort at the firm. They’ve previously announced concrete goals of 15 percent minority partners by 2025, 4 percent LGBT+ partners by 2025, and 30 percent women partners by 2022. Billable credit is a great way to make sure everyone at the firm is pulling toward these very important goals.


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).

Former Dean Explains You Can’t Take The Booze Out Of Law School, But You Need To Be Respectful About It

There are people in this world who complain about law school and while I hear their laments, I’ve never been able to empathize. It was basically college but with lucrative summer jobs to finance the constant partying — an opportunity to substitute Jack Daniel’s for Zachariah Harris. With everyone ploughing through the same curriculum, social gatherings carried an extra communal feel.

The substance abuse problems plaguing the legal industry have forced more institutions to question the reliance upon alcohol-fueled parties. Some Biglaw firms have banned drinking events and replaced them with horrifying body shaming because law firms can’t help but make things worse. But inevitably these pressures would come for the law schools. Just how far can this go?

Stacy Leeds, the former dean of the University of Arkansas School of Law pleads for a more nuanced approach and frankly everyone should follow her lead here.

We first saw this piece late on January 5, but didn’t get to write about it the next day because the Republican Party was too busy trying to assassinate Mike Pence that day. There’s always something.

In a piece entitled, “Can A Tribal Judge Say ‘I Like Beer’?” the former Cherokee Nation Supreme Court justice defends the value of inclusion and the need to avoid sweeping reforms that could fracture the sense of community that law school is supposed to foster. Just consider that not everyone wants to do shots for 4 hours straight and don’t let the fact that you might get in the way of chatting with your sober classmate:

I’ve hosted my share of cocktail receptions and fundraisers with a lot of booze and I have raised millions of dollars that way. And I’m trying to be a lot more more mindful of ensuring real alternatives in all settings. Just like I offer gluten free or vegan snacks so everyone has a meaningful food option AND feels welcome, the same goes for drinks. News flash: water cannot be the only option. Fun “mocktails” are a thoughtful touch and I regret that I didn’t see this earlier in life. I’ll never make that mistake again.

This is the cultural change that the industry needs. Instead of exclusively throwing knock down boozefests or mandatory yoga classes, just endeavor to make every gathering accessible to all. This isn’t a really radical idea — Brian Cuban has covered the need for law firms to carefully consider their non-alcoholic offerings before — but what is different now (even from that 2017 article) is the explosion of self-important mixologists willing to devote time and effort to crafting good drinks. The word “mocktail” didn’t even exist until the late 1970s and wasn’t a staple of social culture until the last handful of years. But it’s here now and can be leveraged to make that student lounge hang out more inclusive.

Given her background as a Cherokee jurist, it’s also a take that addresses the unique history of alcohol abuse among indigenous peoples.

In Indian country it’s hard to have a real conversation. We shy away from talking about it. I don’t want the first year Native law student who has a few beers to be shunned by our community and made to feel bad about themselves while their classmates in the student bar association have their weekly Thursday night binge. And I want kids who are acting foolish like I did, know that they have a really bright future ahead and need not be defined by their past poor judgments.

Moe the Bartender once told Springfield’s designated drivers on St. Patrick’s Day, “beat it — I got no room for cheapskates,” but people avoid alcohol for a whole range of reasons including family history. Don’t lock them out of the club for that.

TO BE CLEAR, I am not advocating for alcohol consumption at all. Let’s all commit to drinking less, never ever getting behind the wheel again and celebrating those that have given it up completely. I may join them someday. Or I may always enjoy a cold beer as a celebration after running a half marathon. Both approaches are ok.

I know most of you will never be 100% vegan or 100% gluten free. And most of you won’t be 100% sober either. But we can encourage each other to have a better attitude about all things healthy and unhealthy.

This may seem untimely right now as law students are taking classes over Zoom, but eventually everyone’s going to come back together. And when they do, folks can’t let alcohol become a social wedge.

Can A Tribal Judge Say “I Like Beer”? [Indigenous Well]


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.

What’s Your Why? Women’s Bar Groups And Mother Attorneys

 Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome Lindsey B.W. Savage to our pages. Click here if you’d like to donate to MothersEsquire.

Women lawyers are unique and diverse individuals; we do not have the same specific goals in our pursuit of personal and professional advancement and development. The past twelve months drove home, many times over, the crucial ways in which women bar groups can support and empower to improve the status of women in the profession. As a director and officer of the National Conference of Women’s Bar Associations (NCWBA), a national “bar association for women’s bar associations” that advocates for equality in the legal profession and in society by mobilizing and uniting women’s bar associations, I have seen firsthand these benefits in action.

Based on my anecdotal research (questioning women lawyers I know), it seems a familiar path into participation in women’s lawyer groups is: someone made me go! Similarly, as a military spouse, I have leaned heavily on various bar groups throughout my career when landing in a new legal market. Depending on the size of a community, the local (city/county) bar group and, often, the women’s bar group are a natural place to join to meet the locals and become integrated into the legal community. Participation in national bar associations further expands our network, especially as virtual event popularity has increased. MothersEsquire is one of my go-to virtual groups as a mother to three young kids and is an essential piece of the lawyer toolkit for moms. And although not exclusively a women’s bar group, the Military Spouse JD Network has been another crucial virtual community for me throughout my career. (They just “get it,” they are everywhere, and they know everything!) Through the NCWBA, I engage with dynamic women leaders from across the world. Personally, my involvement in women lawyer groups has opened up a robust network of women attorneys from which I draw inspiration, motivation, and support. I encourage you to increase your involvement in women bar groups!

When I speak of “women’s bar groups,” I’m not only referencing the formal, established bar associations, with dues and bylaws -– any group of women attorneys collaborating may provide essential support for women in the profession in various capacities. You may find great support in person and virtually from groups of women lawyers brought together with even more specific interests: spin bikes, motherhood, practice area, an interest in law firm management, social justice, hiking, and even a love of a certain grocery store or an interest in drinking tea, to name a few. Not every women’s lawyer group will be the perfect fit for you. It may take some time, trial and error, and luck to find “your” group, but your time will be well spent. Chances are, if you have an interest and you are a woman lawyer, there’s a women’s bar group for that (especially on social media)! The NCWBA’s Annual Women’s Bar Leadership Summit (August 2021) will explore the theme, “What is Your Why?” surrounding issues important to women in the legal profession. To find a group that is right for you — you might consider, What is your Why?

You might be a new mom searching for support from attorney moms who have been-there-done-that: navigating parental leave policies, finding or creating lactation rooms in courthouses, navigating child-care tips and tricks, finding a way to work a flexible schedule, weighing the risks and rewards of taking some extended time off — there’s a bar group for that.

You might just work so much that you never have time to socialize. You need some friends who get it. There’s a bar group for that.

You might be ready to refer out cases to trusted members of your profession, have more work than time and be ready to hire some associate attorneys, or co-counsel. There’s a bar group for that.

You might be on the path to partner at your firm; but you’re the first woman there; you are seeking mentorship from women partners elsewhere as you lay your path to success. There’s a bar group for that.

You might be in-house counsel or the only attorney at a start-up or a solo practitioner looking to scale your business and seeking colleagues to bounce ideas off and collaborate. There’s a bar group for that.

You might be searching for leadership training and opportunities. There are MANY bar groups for that. (Seriously, check the list at ncwba.org or e-mail me, I’ll find you somewhere to volunteer.)

You might be ready to retire, but not ready to abandon your legacy or leave your clients. You wonder what life without billable hours may have in store for you. There’s a bar group for that.

The past twelve months were rough. Personally, I got by with a lot of support from my friends, mostly virtually, and many of them attorney moms I only know through involvement in women’s bar groups. If you have not yet found “your people” in the legal profession, I urge you to do some exploring — it can be very low risk while so many events are being held virtually –- you can even keep your camera off. Or, if you prefer in-person events, find a few attorneys in your local community to have a socially distanced coffee or attend a meeting of an established bar group in your community. On social media, searching for groups of lawyers related to an interest you have may help you connect.  Once you have found your people, bring someone along the next time you attend an event — growing our networks helps everyone succeed!


Lindsey B.W. Savage is an attorney at SRD Legal Group, a women-owned virtual law firm and is licensed to practice law in New York, California, and Washington state. She is a Director and Treasurer of the National Conference of Women’s Bar Associations and Co-Chair of the NCWBA’s Women’s Bar Leadership Summit Committee. She is a director of the Military Spouse Advocacy Network and past director and current member of the Military Spouse JD Network.  Ms. Savage enjoys life as a Navy spouse and mom to three young children, one rabbit, and a sweet rescue dog.

Inaugural Practices

Yesterday, I took a long break to witness the historic inauguration of President Joseph Biden and Vice President Kamala Harris. There’s much to celebrate and learn from our new leaders including how men and women can work productively side by side.

But more to the point, a new election means new opportunities for lawyers. I wrote about new issues after the last presidential election, so here’s a quick summary of Biden’s seventeen executive orders and what they mean for lawyers.  The orders will implement changes for immigration, revive a focus on climate change and reinforce Title VII of the Civil RIghts Act to require that the federal government does not discriminate on the basis of sexual orientation or gender identity, Biden will also extend the pause on federal student loan interest and principal payments. 

What are you looking forward to for this new administration?

Female Law Firm Partner Gets Toy Dick From Colleague

The holiday season is often fraught with all sort of landmines. And even though the pandemic stopped in-person gatherings for 2020, there was still a lot to navigate, like gift giving. The search for the perfect gift is challenging and this story is about an attorney who went very, very wrong with his giving spirit.

At leading UK law firm Howes Percival, attorneys engaged in a Secret Santa gift exchange to share in the holiday spirit. Because of COVID, they had to ship the tokens directly to one another. One female partner at the firm received a stress ball from her Secret Santa. And that might be a cute and appropriate present for someone in a high-pressure job like law firm partner… except it was in the shape of a penis. That takes it from acceptable to NOT AT ALL OKAY really quickly.

As reported by our friends at Roll On Friday:

“It was a case of ‘whodunnit’ until the male solicitor confessed” to the female partner, said the insider.

Howes Percival did not respond to repeated requests for comment about the gifting of the squashable member.

Turns out it was a male insolvency solicitor. No word yet on what, if any, consequences he faced for this wildly inappropriate gift.

I know men often think that their member is God’s gift to the world, but this is taking it a bit far.


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).

MD Anderson doesn’t have to pay $4.3M HIPAA penalty, court rules – MedCity News

A U.S. appellate court has vacated a $4.3 million HIPAA penalty facing University of Texas MD Anderson Cancer Center, stating in its opinion filed last week that the government’s “decision was arbitrary, capricious, and contrary to law.”

In 2018, a Department of Health and Human Services administrative law judge ruled that MD Anderson violated HIPAA privacy and security rules when it lost the personal health information of more than 33,500 individuals about five years prior.

HHS’ Office for Civil Rights investigated MD Anderson, the renowned Houston-based organization focused on cancer care and research, after three separate data breach reports were filed in 2012 and 2013. The data breaches involved the theft of an unencrypted laptop from an MD Anderson employee and the loss of two unencrypted USB thumb drives.

Following its investigation, the OCR said it found that MD Anderson did not begin to adopt an enterprise-wide solution to implement encryption of electronic personal health information until 2011, and it failed to encrypt electronic devices containing that type of information between March 24, 2011, and Jan. 25, 2013.

MD Anderson claimed that it was not obligated to encrypt its devices. It also stated that the personal health information at issue was for research, and so it was not subject to HIPAA’s nondisclosure requirements. The organization appealed the penalty twice but was unsuccessful, until it petitioned the U.S. Court of Appeals for the Fifth Circuit for review.

The court concluded that the penalty imposed by HHS was unlawful. The court details its reasoning, including the fact that though the stolen laptop and USB drives were not encrypted, HIPAA regulations state that covered entities need only implement “a mechanism” for encryption. MD Anderson had implemented several encryption mechanisms, including one to encrypt emails, the court opinion states.

“So MD Anderson satisfied HHS’s regulatory requirement, even if the government now wishes it had written a different one,” the opinion states.

Further, HHS conceded that it could not defend a fine of more than $450,000 after MD Anderson filed its petition for review.

“Our purpose throughout this legal process has been to bring transparency, accountability and consistency to the Office for Civil Rights’ enforcement process,” an emailed statement from MD Anderson reads. “As always, patient privacy remains of extreme importance at MD Anderson. We are committed to respecting HIPAA and the rules of protecting patient information, and we continually evaluate and enhance our data protection and privacy procedures to ensure our high standards are met.”

The appellate court vacated the penalty and remanded the matter for further proceedings consistent with its opinion.

Photo: zimmytws, Getty Images

Trump Leaves Get-Out-Of-Ethics-Free Pass For Staffers On His Way Out Of Town

What finer coda to the Trump administration’s orgy of corruption than an executive order rescinding ethics restrictions on lobbying in the final hours? Aaron Sorkin could not have scripted it better.

On January 28, 2017, eight days into his term, President Trump signed Executive Order 13770 governing Ethics Commitments by Executive Branch Employees. In fulfillment of Trump’s campaign promise to “drain the swamp,” employees would sign a pledge not to lobby their agencies for five years after leaving government service. They’d permanently give up their right to lobby for any foreign government. And they’d pinky swear to refrain from dealing with old clients, with former lobbyists vowing “I will not for a period of 2 years after the date of my appointment participate in any particular matter on which I lobbied within the 2 years before the date of my appointment or participate in the specific issue area in which that particular matter falls.”

In practice, the order was honored more in the breach than in the observance. Less than a year after resigning as the top lobbyist for coal company Murray Energy, Andrew Wheeler was head of the Environmental Protection Agency. He succeeded ethics fireball Scott Pruitt, who left government service to go work for coal baron Joseph Craft III, Republican megadonor and husband of U.N. Ambassador Kelly Craft.

Pruitt’s attorney (yes that) Cleta Mitchell complained to the Washington Post, that ethics rules had been unfairly “weaponized in order to destroy political opponents.” It’s just a shame when a dedicated public servant who lives in a lobbyist’s house for nominal rent, uses government employees to source hotel hand lotion and used Trump hotel mattresses, and leans on the CEO of Chik-Fil-A to get his wife a franchise is driven from office by rank partisanship!

Mark Esper, was named a top corporate lobbyist in 2016 by The Hill as he toiled away for Raytheon. In June of 2017, he became Secretary of the Army, and was eventually named Secretary of Defense in 2019. Interior Secretary David Bernhardt was a former oil and mining lobbyist whose former clients had business before his department.

Not to mention the hundreds of lower level officials who received ethics waivers to deal with former clients. In 2019, ProPublica wrote:

The number of lobbyists who have served in government jobs is four times more than the Obama administration had six years into office. And former lobbyists serving Trump are often involved in regulating the industries they worked for.

Even government watchdogs who’ve long monitored the revolving door say that its current scale is a major shift from previous administrations. It’s a “staggering figure,” according to Virginia Canter, ethics chief counsel for the D.C.-based legal nonprofit Citizens for Responsibility and Ethics in Washington. “It suggests that lobbyists see themselves as more effective in furthering their clients’ special interests from inside the government rather than from outside.”

All while the Trump administration pretended that Hunter Biden’s bog standard DC grift was the crime of the century.

Naturally the former president wanted to free his staffers from these onerous restrictions as a parting gift. So this morning he revoked the order in its entirety, freeing his former staffers from the pledge not to lobby the executive branch or on behalf of foreign governments. K Street, start your engines.

The Washington Post reports that President Biden has pledged even stricter ethics standards for his administration, including a ban on incoming staffers taking a big parting bonus from their former employers as an incentive to go work for the government. And it’s a safe bet Biden’s not going to have his family members running foreign policy, pandemic relief, and national drug policy, either.

Good bye, and good riddance.

Update: We Found a “Staggering” 281 Lobbyists Who’ve Worked in the Trump Administration [ProPublica]


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