Category: News Feeds

Last week, Elliott Management had a little sit-down with the people who run Twitter—badly, as far as the hedge fund is concerned. Why, for instance, Paul Singer & co. wanted to know, was Twitter falling behind in terms of innovation? Why was its stock tanking when other tech companies were soaring, at least before the global economy got the sniffles? Could it potentially have something to do with a CEO who was running two companies while spending half of the year on the other side of the world? Perhaps things would be a bit better if he chose between Africa and Silicon Valley, and one of the two companies, preferably Square, so that Paul Singer could make some goddamned money on his president’s favorite medium?

This is sure to stir up the Biglaw recruitment game. A trio of T14 schools — Harvard Law, NYU Law, and Columbia Law — are holding limited early interview programs to get their students a foot in the Biglaw door even faster than before.

These law schools are already killing it when it comes to placing students in Biglaw jobs (Columbia Law took the top spot for Biglaw placements in the most recent ranking with NYU coming in third, and Harvard rounding out the top 10), but this new program is designed to give their students an even bigger advantage. As Columbia’s career services dean Marta Ricardo told Law.com, a big part of the move is to make sure their students aren’t hurt by the law school’s interview program:

“We don’t want our students to think they are at a disadvantage,” said Columbia career services dean Marta Ricardo, of the school’s decision to drop its ban on early interviews. “We know that if we don’t create a system, they will do [early interviews] anyway, and they will do it with no advice from us. This year is a big experiment, to see how much capacity the firms have to even do early interviews.”

As legal industry observers know, the state of Biglaw recruitment has been in flux since late 2018, when the National Association for Law Placement (NALP) made sweeping changes to their “Principles and Standards for Law Placement and Recruitment Activities,” upending the established recruitment calendar and ushering in a Wild West ethos. As Nicholas Alexiou, Director of LL.M. and Alumni Advising and the Associate Director of Career Services at Vanderbilt University Law School, said at the time:

All of the timelines and guideposts that served as the foundation of entry-level recruiting have been eliminated. No one-on-one meetings between Career Services and 1Ls until October 15th? Gone. The prohibition on formal applications, interviews, or offers between 1Ls and legal employers until December 1st? Bye-bye. The 28 days that 2Ls should have to make a decision on a summer associate offer? Hasta luego. The limit of five open offers that a 2L could hold at any one point during the Fall recruiting cycle? Sayōnara.

This is just the latest change in that tumultuous landscape.

The lack of rules is an essential component to understanding these latest changes. Even among the T14, there were wildly different reactions to the changed NALP rules. About half of them stuck to the old timetable, which meant their students were unable to interview with firms until on-campus recruitment, but for those that quickly adapted to the new (lack of) regulation, all bets were off. Harvard’s decision to move to this new early interview program (2Ls can apply to five law firms in June and interview before on-campus interviews; any offers that are extended must remain open until 21 days after the on-campus program wraps) was motivated by the change:

That left schools such as Harvard—which held to the prior rules and prohibited early interviewing—in an untenable position, said career services dean Mark Weber, particularly because summer associate class sizes at the largest firms have been contracting over the past two years. Students were frustrated at being forced to wait when their counterparts at other law schools were interviewing with firms before OCI. And some firms were frustrated that they couldn’t interview Harvard students at the same time as candidates from other schools. After careful consideration, Harvard in late December unveiled what it has dubbed “EIP Preview. (EIP stands for Early Interview Program, Harvard’s term for OCI.)

But Weber acknowledges their approach is designed to be a middle ground, to keep their students competitive without eliminating all guidelines:

“By having this approach, we acknowledge that the present system is broken,” Weber said. “By taking the middle ground, we’re trying to address the concerns of both students and employers while still having some guidelines in place. The structured approach allows students who want to do some early interviewing to do so without being overwhelmed.”

And after Harvard made the change, NYU and Columbia quickly responded with similar programs of their own. As Irene Dorzback, career services dean at NYU, said, “We had to stay competitive. That is No. 1.”

Bruce Elvin, career services dean at Duke Law (which was already on board with early interviews) predicted this will lead to some big changes in the recruitment game:

“There is tons of paranoia. Everybody has FOMO,” Elvin said. “The employers think everybody else is doing something they aren’t. Maybe, but maybe not. Then students say, ‘Oh my colleagues at other schools have five offers, and my classmate down the hall has three offers.’ But your circumstances are completely different. This is going to be extremely unsettling for everyone involved.”

So get ready as the already anxiety-inducing interview season gets ratcheted up a notch.

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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).

The Ninth Circuit just handed Led Zeppelin a big win in the Stairway to Heaven copyright dispute. An earlier panel decision ordered a new trial, but the en banc ruling tossed that idea, junking the inverse ratio rule in the process.

But then PACER, who is definitely not having a great year, apparently blocked access to the opinion. Which is… ironic?

This is why we pay 10 cents a page!

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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.

Michael Flynn will prove that he never did lie to the FBI if it’s the last thing he does! Sure they’ve got him on tape talking to the Russian ambassador about sanctions, then denying it when asked by those mean FBI agents. Yes, he did admit to it in his plea deal two years ago. And, okay, fine, he also allocuted to it under oath. TWICE.

But that was all because those rascals at his former law firm, a little mom-and-pop shop called Covington & Burling, gave him bad advice. So now he’d like to withdraw his plea based on ineffective assistance of counsel. And if that doesn’t work, maybe he’ll plead insanity.

On Friday, Flynn and the government filed a joint stipulation in which Flynn agreed to waive attorney-client privilege and allow prosecutors to interview Covington about Flynn’s ineffective counsel claims. It should be noted that U.S. District Judge Emmet Sullivan has gotten a mite tetchy in the past when Flynn tried to deflect blame onto other people. But this time will be different, according to his new lawyer Sidney Powell, the only person in America who tweets more than Donald Trump.

If Flynn actually succeeds in withdrawing this plea, prosecutors will be free to use all of his statements to the FBI, including his proffer sessions, against him. And, although he wasn’t formally charged with it, Flynn admitted to violating the Foreign Agents Registration Act by failing to register his work for the Turkish government, both in his plea agreement and in testimony to the grand jury. Taken in this light, waiving the privilege and going to war with his former lawyers is probably not the dumbest thing Flynn’s ever done. But it ain’t exactly smart.

Those Covington guys gotta be shakin’ in their white shoes. Or maybe … not.

U.S. v. Flynn, Joint Notice of Filing [No. 1:17-cr-00232-1 (D.D.C. Mar 6, 2020)]

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

Somewhere amid the world falling apart and being a little understaffed at Above the Law, we realize we never put out our annual “Lawyer of the Year” contest. So, like the Oscars, we’ll crown the best of 2019 several weeks into 2020.

For the unfamiliar, this honor functions a lot like Time’s Person of the Year, recognizing the most newsworthy attorney of 2019. There can be good attention or bad attention, but this is about the attorney who most dominated the headlines in 2019. And, yes, we do mean the Above the Law headlines, so there’s a bit of a skew toward the lawyers who made us laugh.

Without further ado, here are the nominees:

Rudy Giuliani: He kicked off the year worrying about how often he’d been caught lying for Trump and trying to insert himself into the impeachment inquiry. By the end of the year, Rudy had transitioned to the role of client, coming under increasing scrutiny with his old cronies starting to sing to prosecutors. Few attorneys were as reliable for an Above the Law forehead-smacking headline last year — a real achievement no matter how this all turns out.

“Bowl Of Dicks” Guy: Depositions can be frustrating. One attorney told the world how he felt about them and found himself the subject of an ex parte motion for relief. Christopher Hook may not have had the whole-year staying power of Giuliani, but he lit up our lives with “Fuck you crooks, eat a bowl of dicks” and “I’m going to let the long dick of the law fuck Allstate for all of us.”

Michael Avenatti: We’ve never had a back-to-back Lawyer of the Year, but Avenatti made a case for himself. In 2018, Avenatti was everywhere, challenging the White House, bringing down Michael Cohen, toying with a presidential run… the guy owned that year. In 2019, his fortunes took a dramatic turn with multiple indictments, an arrest, a trip to solitary, and a conviction.

Pam Karlan: The Stanford Law professor and former DOJ official delivered a bravura performance at the impeachment hearings, prompting arguably the most bizarre faux outrage of the year when right-wingers decided saying Trump couldn’t give his children titles of nobility was an egregious assault on his child. It was a controversy that still I’m still not sure wasn’t a fever dream.

Alan Dershowitz: What didn’t Dershowitz do in 2019? He demanded those accusing him of being involved with Jeffrey Epstein’s sex trafficking efforts sue him for defamation. So they did. Then he defended Epstein’s slap on the wrist deal in a bid to enter the Hot Take Hall of Fame. Then Boies sued him. And while the impeachment trial didn’t happen until 2020, Dershowitz managed to get himself front and center on it through the latter half of 2019.

Honorable Mentions: We also got some nominees submitted who don’t really fit the “dominant newsmaker” parameters, but we thought deserved a quick shout-out nonetheless.

Matthew Dowd: From working with Judge Posner and David Boies on a major pro se battle to litigating John Steinbeck’s legacy, Dowd had an eventful year being a real lawyer. And yet his professionalism meant he largely stays out of the limelight.

Michelle Browning Coughlin: The founder of MothersEsquire and partner at Wyatt Tarrant & Combs is working hard to make sure that continuances for parental leave become mandatory and that courthouses across the country provide adequate accomodations for breastfeeding mothers. She also published My Mom, the Lawyer in late 2019.

So, vote for who should be Lawyer of the Year. Polls will stay open until Sunday, March 15, at 11:59 p.m. Eastern.

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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.

In-house legal departments have been making significant strides in legal innovation. In a field that has led society in innovations, in-house departments have been at the forefront. While there are numerous explanations for why in-house departments lead innovation and the future of law, five, in particular, stand out.

In-House Lawyers Are Rarely The Show

Only rarely are the in-house lawyers a company’s main feature. Often, they play a supporting role, just a small part of the much bigger show.  As a result, they are by nature nimbler, attuned to demands of others, and collaborative. The in-house lawyers must follow the show. They must enable and support it. And most importantly, they must not impede it.

Billable Hour Legacy Is Rare

The legacy of a billable hour does not impede progress. Unlike at law firms, there is no pressure on law departments to figure out how they will make money if a technology or process stalls significantly. Based on my informal, highly unscientific survey, numerous innovators had to rethink their offering and business models to a law firm because it questioned the imperial infallibility of the billable hours and the institutions they support.

Very Close Ties To The Business

The in-house departments are very close to the business. They are on many calls and in numerous meetings. The members of the in-house departments often socialize with the rest of the company in the regular flow of formal and informal events. And finally, they are united to meet the company’s goals and targets. Together they celebrate successes, reflect on misses, and live the consequences of what happens. That is why in-house departments are more likely to keep with the business trends such as increased collaboration, enterprise-wide automation, diminishing hierarchal structure, widespread digitization, increased transparency, and numerous others.

Inflow Of Other Professionals

I recently asked many in-house legal operators how they joined the field and emerged as leaders in the space. Many of the legal operators I spoke to had numerous and diverse paths that may not have included adventures in law in the past. Many had competencies in finance, business, or technology. Some came from the military and other less traditional backgrounds. As a result of the inflow of other professionals into law, legal departments tend to normalize quicker and more likely to cross-pollinate with the ideas across the enterprise.

Constant Reality Checks

Finally, to be part of a business is to constantly benchmark against competitors and react to external events, such as the state of the economy, influence of elections, emergence of national disasters, social media trends, and, most recently, the spread of a virus. These close ties to the world put constant pressure on in-house departments to provide legal services cheaper, faster, and more effectively. Thus, they also tend to be more open-minded and okay with experimenting and change.

Just by their nature, in-house legal professionals are predisposed to innovate within their companies. It’s no surprise, then, that they are leading the charge in the legal industry. From diverse backgrounds, legal operators play key supporting roles while working closely with their business and in conversation with external realities. As the field continues to innovate, look to the work of legal operators to predict what might come next.

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

My mantra for the justice is to “just show up.” When it comes to working out, showing up is part of the battle. The Justice always shows up for training and gives it her very best. One time, she told me she left a White House dinner early to make it to our training session.

— Bryant Johnson, who serves as Justice Ruth Bader Ginsburg’s personal trainer, sharing the fitness mantra that’s helped everyone’s favorite justice remain notorious in the gym. Ginsburg is almost 87 years old, but she can probably do more push-ups than you.

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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.

Harvey Weinstein is set to be sentenced this Wednesday following his conviction for Rape in the Third Degree and Criminal Sexual Act (unconsented oral sex.)

For a guy like Weinstein, who spent the entirety of his case under house arrest and rarely passed a moment of his adult life in a place he didn’t want to be, this will be a huge change.

Many people facing prison hear the down-low of what prison’s like from relatives, friends, and neighbors. Although they’re still nervous about it, at least they have some real sense of what to expect and how to survive. Some people even get “props” for being “in.” It ups their public image, helps sell their music, reputation, or brand. Not so for Harvey Weinstein. I’m guessing he’s scared to death. He’s probably seen a lot of movies (and maybe even produced some) about what happens in jail to guys accused of sex crimes, especially ones with money.

Weinstein’s facing a minimum state sentence of five years, but it could run as high as 25. He’ll be given a fixed number of years on each crime that will likely run consecutively, one after the other, since they involved separate incidents and separate complainants. Plus, Judge Burke is not a light sentencer, and the eyes of the world are upon him.

To get a better sense of how best to face this uncertain future, Weinstein added prison consultant Craig Rothfeld, a former Wall Street exec found guilty of securities fraud who spent time in an upstate prison, to his already robust defense team. Rothfeld cleverly parlayed his experience into a consulting biz advising future inmates and their families how best to tackle the many issues that arise when locked up 24/7 with a lot of dangerous guys who hate your guts or want your money.

This is not a new business. Books like “Surviving and Thriving in Prison” (about federal prison time) have been written and, judged by the customer reviews, appreciated by the relevant audience. But state prison’s a hybrid, especially in New York, where there are over 52 correctional facilities. Each one has its own quirks, feel, bosses, wardens, and subset of inmates. It’s hard to write a template about the whole system.

Certain basics, however, are universal. The first is a complete loss of control and power. Then there’s the dehumanization. The inmate becomes a number, a “body” which must be housed, fed, cleaned, and counted. Finally, there’s unending boredom tinged with paranoia. Every day is the same — wake at the same time, move at the same time, and maybe get library or religious privileges on occasion. The lucky ones are awarded basic jobs like cleaning the floors, doing the laundry, or working in the kitchen. Controls are enforced on who inmates call, write, and have as visitors. Mix this with the fear that an attack could come at any moment from other inmates and even a few years in prison can seem like an eternity.

Solitary confinement keeps inmates from the fray of “general population,” but it brings a greater burden of boredom, isolation, activity restriction, and loss of privacy (guards check in more often).

Being well known brings its own burdens. If other detainees know you’re rich, they’ll expect more from you. Although Bill Cosby turned his fame to his favor. I’ve read he’s been using his jail time to mentor young inmates and to get in better shape. He reportedly entered prison at 220 pounds and has peeled down to a healthier 189.

But Cosby had a much different standing in the outside world than Weinstein. He was widely known, was popular, and was (and probably still is) funny.

None of those things are true for Weinstein.

Prison consultant Rothfeld will coach Weinstein on how to not argue about the television remote with the big guy from down the hall, how it’s not a good idea to gamble, and what to expect in the first 90 days.

But really, it’s a go-it-alone process. And there’s no telling what experiences an inmate might confront within those confines.

Weinstein’s appeal motion, even if successful, will take years to perfect, and he’ll spend those years inside. In part how he does is up to him. In part it will depend upon the vagaries of a regimented system filled with randomness — who the guy in the next cell is, who the warden is, who wants a piece of him the most.

The man who controlled a chunk of the money in Hollywood will be lucky to control any aspect of his own fate.

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Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

In defense of Dechert, they’re doing exactly what crafty lawyers eyeing a loophole should be doing.

The Am Law 50 firm moved its headquarters to Philadelphia’s Cira Centre in 2005, taking advantage of a tax break program that Pennsylvania offers businesses to move into developments in formerly run-down areas. Since taking up residence in Cira Centre, Dechert’s paid virtually no state or local business taxes in exchange for Dechert’s role in making the area an attractive business destination.

But the program expired in 2018, so when the Keystone Opportunity Zone program eyed a new tax-free area in Schuylkill Yards, Dechert walked up and asked to move there too.

There’s nothing in the law to say companies can’t hop from zone to zone to remain permanently tax-free, and when authorities denied Dechert’s request to continue not paying its taxes, the firm took the government to court.

On the one hand, by moving to the new location, Dechert’s asking to be rewarded for bailing on the first opportunity zone. On the other hand, Dechert’s right that the law doesn’t account for the stopping businesses from “zone hopping” and Dechert’s attorneys argue that Dechert’s already done its job and that Cira Centre can now fill its potential Dechert-sized vacancy with any number of willing tenants who won’t mind paying their taxes. They feel the firm should be rewarded for volunteering to march into a new frontier a second time.

These stadium deal-style tax breaks have a pretty bad record for the cities when all is said and done, but states keep doing them, one of the many “race to the bottom” side effects of Federalism in the modern age where entities can play state governments off each other. At one point there was a concerted effort to force the businesses taking these tax breaks to aid in the development of the neighborhood — not so much anymore. From the Inquirer:

Originally a company had to either boost employment by 20% or invest at least 10% of its total revenue from the previous year. The new way to qualify just required a company to sign a lease covering the duration of the zone and to spend at least 5% of the previous year’s revenue on rent.

Much like the much-publicized Amazon headquarters deal in New York, the logic is that increased taxes on wages will pay for the business tax cuts. During the run of the deal, Dechert reduced headcount from 700 in 2005 to 461 last year.

But that’s surely going to totally turn around with these new tax breaks!

One of Philadelphia’s richest law firms wants tax breaks, again. Why it might get its way. [Philadelphia Inquirer]

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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.

Many misfortunes have befallen Wells Fargo over the past three-and-a-half years, nearly all of them either self-inflicted or richly deserved. But here’s one that really can’t be laid on the bank’s account, fake or otherwise: It might have avoided the slow drumbeat of bad news and its associated fines over the past few years if only Mick Mulvaney had hired a non-published racist to do the exact opposite of what his boss told him to do.

According to the report, Mr. Scharf’s immediate predecessor, C. Allen Parker, explicitly told a member of the bank’s board in May that Mr. Blankenstein had promised him that the Trump administration would continue to smooth the way for the bank — even after Mr. Blankenstein resigned that week over racist statements he had made as a law student.

“Eric also assured me that there would continue to be ‘political’ oversight of the engagement with us, although he wasn’t yet sure who his successor would be,” Mr. Parker wrote to the board member, James Quigley…. Given their conversations with Mr. Blankenstein, the bank’s leaders were expecting to be able to resolve the active investigations with the agency in private, without paying any more fines. They expressed surprise, according to the report, when members of the agency’s staff said two months later that they were not aware of Mr. Blankenstein’s assurances.