Category: News Feeds

Imagine working with teenagers all day and thinking you could threaten them into keeping quiet. That you could simply shout “There will be consequences!” into the PA system, and kids would just stay off social media and stop telling the world about the spectacular debacle of their school reopening in the middle of a pandemic. That you could open a 2000-student school, after multiple students and faculty have already tested positive for COVID-19, and no one would ever find out about it.

Spoiler Alert: They found out.

After photos of crowded halls packed with unmasked teenagers at Spaulding High in Griffin, Georgia went viral this week, Paulding County Schools Superintendent Brian Otott defended his district’s decision to re-open as Georgia’s infection rate spikes.

The halls aren’t usually so crowded as all that, Otott told the Washington Post, and then bizarrely claimed that the risk clock only started ticking after “being within 6 feet of a sick person with COVID-19 for about 15 minutes.”

He also defended his decision not to require masks for students.

“Wearing a mask is a personal choice, and there is no practical way to enforce a mandate to wear them,” he told the Post. “What we will do is continue to strongly encourage all students and staff to wear masks.”

That strong encouragement is convincing about a third of the students to make the personal choice to wear a mask, according to 15-year-old Paulding High student Hannah Watters.

Which is… not encouraging.

This is not an approach the school takes when it comes to dress code, though. Apparently the length of skirts worn by students in the district is not a personal choice, and it can be enforced. The school requires that skirt hems extend no less than “3” from the top of the kneecap as measured by a ruler or the length of a 3 x 5 index card” and even goes so far as to specify the maximum rise of a skirt’s slit.

Any girl who has been forced to kneel on the floor for a skirt check or spend the day in an extra-large T-shirt from the Lost and Found will remember the humiliation forever. But safeguarding the tender eyes of her fellow students is an academic priority, not a “personal choice.” Unlike, say, slowing the spread of a virus during a deadly pandemic.

And speaking of slowing the spread, Superintendent Chalmers Otott has hit upon a brilliant plan to quash online criticism of his school.

There will be consequences!

In fact, there already have been consequences. As BuzzFeed reports, Hannah Watters was suspended for five days because she violated the school’s policy on phones in schools and posting images of other students without their permission.

And while students do surrender some of their First Amendment rights at the school door, the school can’t violate its own policies just to suppress criticism and hide what’s going on in its halls.

“I think my punishment’s severity was excessive, but I do understand that I violated a code of conduct policy,” Watters told BuzzFeed reporter Lauren Strapagiel. “We have a progressive discipline system. When disciplining me and the other student, they skipped level one and went straight to two.”

Watters told BuzzFeed that she and her family plan to fight the suspension.

Viral photo of crowded Georgia high school hallway lacks context, superintendent says [Washington Post]
A Georgia High School Suspended Two Students For Posting Photos Of Crowded Hallways [BuzzFeed]

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

I know that I am dealing with some form of low-grade depression. Not just because of the quarantine, but because of the racial strife, and just seeing this administration, watching the hypocrisy of it, day in and day out, is dispiriting. …

I’d be remiss to say that part of this depression is also a result of what we’re seeing in terms of the protests, the continued racial unrest, that has plagued this country since its birth. I have to say that waking up to the news, waking up to how this administration has or has not responded, waking up to yet another story of a Black man or a Black person somehow being dehumanized, or hurt or killed, or falsely accused of something, it is exhausting. And it has led to a weight that I haven’t felt in my life, in a while.

— Former First Lady Michelle Obama, in comments given during “The Michelle Obama Podcast” on Spotify, where she discussed how the pandemic, political dissension, and racial injustice in America have affected her. Obama previously discussed similar feelings in her memoir, Becoming, when she told the world how much she hated being a lawyer, referring to document production as being “deadly.”

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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.

Reed Smith finds itself defending against a lawsuit from a former attorney, Aaron Chase, who alleges the firm fired him in violation of the Family and Medical Leave Act, the New York State Human Rights Law, and the New York City Human Rights Law. The lawsuit also says Chase is looking to amend the complaint to add claims of discrimination under the Americans with Disabilities Act.

The complaint, which in addition to the firm names co-chairs of the firm’s global regulatory enforcement group, Michael Lowell and Jennifer Achilles, as defendants, alleges Chase was retaliated against after suffering a concussion on vacation in September 2019. As reported by Law.com, Chase alleges that while suffering from the ramifications of the concussion in October 2019, Achilles brought up an error that he made on a case. She also is alleged to have brought up previous mistakes that Chase says she never mentioned prior to suffering from the concussion:

Chase responded to the criticism by stating he didn’t believe the error would have occurred without having suffered the concussion, to which Achilles allegedly said “It’s unfortunate that the thing that broke the camel’s back happened while you are suffering from a concussion, but you did basically the same thing a few months ago, so I don’t think it was the result of the concussion,” according to the filing.

The complaint alleges that shortly after that conversation, Achilles said she no longer wanted to work with Chase, and suggested he find work with other partners.

Chase took leave under the FMLA from October 24, 2019, to February 27, 2020. He says he was removed from his cases while on leave, and when he returned to work, had a difficult time finding assignments. According to the complaint, the October performance issue was never mentioned to Chase again… that is until he was terminated on May 8th. Chase is seeking compensation for past and future earnings, as well as punitive damages.

The firm denies the charges in the complaint, saying:

“Mr. Chase’s allegations are unfounded, and we intend to defend this case vigorously. Reed Smith routinely makes personnel decisions as we evaluate performance and productivity across the firm. We invest a great deal in all of our talent so they can be successful in supporting our clients and in pursuing their own professional goals.”

While plaintiff’s attorney, Lawrence Pearson of Wigdor, also had a statement on the lawsuit:

“By removing Mr. Chase from all of his cases before he returned from a protected medical leave, then failing to reintegrate him into the practice upon his return — which the firm’s own policies call for — Reed Smith has made its discriminatory animus crystal clear. We look forward to working to vindicate Mr. Chase’s rights in court.”

You can read the full complaint below.

If you were wondering why it still costs 10 cents per page to get something off of PACER when indexed databases everywhere else online are entirely free, you’ve got company in the Federal Circuit Court of Appeals. The Federal Circuit issued an opinion this morning affirming a lower court ruling that the federal judiciary has siphoned money from the PACER revenue stream for unauthorized purchases.

In other words, that the federal judiciary imposed a financial burden on non-profit, low income, and pro se litigants and used it for a slew of projects unrelated to expanding public access to the courts.

We agree with plaintiffs and amici that the First Amendment stakes here are high…. If large swaths of the public cannot afford the fees required to access court records, it will diminish the public’s ability “to participate in and serve as a check upon the judicial process—an essential component in our structure of self-government.” … Such concerns bolster our rejection of the government’s more sweeping interpretation of § 1913 Note as permitting EPA fees high enough to cover all electronic access to court information.

The result isn’t particularly surprising when you remember that the panel asked the attorney defending PACER’s budget, “Do you have a lot of trouble answering questions generally in life or just when you come in front of the court?” Oof.

Not since F.W. Woolworth has an entity profited so handsomely off of a dime-based business model. PACER reportedly brings in $140 million annually, which it claims is necessary to cover its $100 million operating costs. Why a no frills, difficult to search, design nightmare of a document repository would require $100 million to operate is a mystery.

And the Federal Circuit agrees.

You can read the opinion on the next page. I grabbed it off the Federal Circuit homepage where it was prominently featured. I tried to get it off of PACER and it was on page 3 of the search results. That’s what $100 million will get you apparently.

Appeals court rules that judiciary misspent funds from court records fees [The Hill]

Earlier: ‘Do You Have A Lot Of Trouble Answering Questions Generally In Life Or Just When You Come In Front Of The Court?’

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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.

Plaintiff side contingency work isn’t for every firm. There’s a huge risk/reward gamble and fortune (read: contingency fees) favor the bold. Even though that’s an accepted maxim of the legal industry, some fee requests are large enough to turn the heads of even seasoned legal watchers. Such is the case of the latest fee request of Quinn Emanuel.

As, well, a bunch of outlets have reported, the firm is seeking $185 million in fees for their representation of insurers suing the federal government under the Affordable Care Act. As the firm has noted in its court filings, that is only 5 percent of $3.7 billion settlement: “If approved, a 5% fee would represent one of the lowest percentage rates ever awarded to class counsel, even in cases with multibillion-dollar recoveries, such as this.”

But as the ABA Journal notes, translating that to an hourly rate is $18,500 an hour, which is quite the bonus:

Translated into an hourly fee, $185 million represents a bonus of 18 to 19 times the law firm’s normal billable hourly rate. The firm said the amount is reasonable under a “lodestar cross-check” that involves calculating the product of lawyers’ hourly rate with the number of hours worked, then applying a risk multiplier to compensate for the risk of no or reduced recovery.

As Geoffrey Miller, professor at New York University School of Law, told Bloomberg Law, while the 5 percent seems reasonable, that multiplier number will still be taken into account:

Miller said Quinn Emanuel’s 5% request was “reasonable,” but noted that a multiplier of 18 was “extraordinarily large.”

That dynamic is somewhat common in cases with huge awards, Miller said, and makes it hard to handicap how a judge will view Quinn Emanuel’s fee request. One factor working in Quinn Emanuel’s favor is that the insurers chose to be part of the class and knew the fee could be as high as 5%, Miller said.

But in the end, as Miller notes, there isn’t a precise formula that will carry the day, but instinct, “Ultimately, the judge will decide based on his or her instinct.”

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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).

With everyone working from home, firms face new security risks they probably weren’t prepared for. Joe and Kathryn check in with Brian Schrader, CEO of eDiscovery and digital forensics firm BIA, about working from home, the new vectors of discoverable data being created by COVID, and the importance of training everyone to, well, not do dumb things with their computers.

Another day, another ranking for lawyers to ogle in a search for meaning as they attempt to get through the day’s billables during a pandemic. Despite all the unrest and change in the world thanks to COVID-19, this is still the life of a Biglaw attorney, always on the hunt for confirmation that their firm is the best firm, the one that’s hitting all of its essential metrics year after year. If that sounds like you (and you might as well admit it, it probably does), then you should check out the latest offering from the American Lawyer, the annual A-List ranking.

Are you somehow unfamiliar with this ranking? Here are all of the metrics that it measures to determine which Biglaw firms are the best of the best:

The A-List recognizes firms based on a combination of factors, both financial and cultural: revenue per lawyer, pro bono commitment, associate satisfaction, racial diversity and gender diversity (the percentage of equity partners who are women), with RPL and pro bono given double weight. Each metric measures Am Law 200 firms’ relative performance—a firm’s score in a given category is based on its ranking among all 200 firms. Each category, as well as the overall score, is based on a 100-point scale.

With that said, the full top 20 firms and their scores are listed at the American Lawyer. Without further ado, here are the top 10 to satiate your rankings cravings (with the firms’ total scores noted parenthetically):

1. Munger Tolles (92.8)
2. Ropes & Gray (91.2)
3. O’Melveney (89.6)
4. Debevoise (89)
5. Orrick (87.5)
6. Covington (86.4)
7. Paul Weiss (86)
8. Paul Hastings (85.6)
9. WilmerHale (85.5)
10. Skadden (84.7)

Congratulations to all of the firms that made this year’s Am Law A-List.

The 2020 A-List: Amid Upheaval, Firms Focus on Finding Balance [American Lawyer]

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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.

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

NCBE honcho Judith Gundersen appeared on a panel at Miami Law’s “Power, Privilege, and Transformation: Lessons from the Pandemic for Online Legal Education” virtual conference yesterday. With the July in-person bar exams that Gundersen continues to demand marred by lapses in safety protocols and involving at least one positive COVID case, Gundersen took the opportunity in this serious forum to threaten the people raising public health concerns.

During the event, Gundersen said that she and other NCBE officials:

have been the subject of extreme lack of civility and professionalism and in some cases, conduct that borders on harassment. Character and fitness issues are arising in the way examinees are communicating with Board Staff and Board volunteers.

Harassing people is bad! But if you’re giving this quote its most superficial read, then we may have some bridges to sell you.

We’re talking about a lawyer here (and she’s no less a lawyer just because she never took a bar exam!), so we need to parse these words carefully. Gundersen does not say that anyone has been harassed, quick to say it “borders on” harassment which is the “I can see Russia from my house” of harassment allegations. Nor does she say that she’s actually referred any violations to a Character & Fitness panel, opting instead to vaguely raise the prospect that anyone who chooses to engage with the NCBE just might fall into that category and have their license tied up. So your best bet, she’s conveying, is to not speak out at all.

Lest you think I’m downplaying the seriousness of the risk of harassment, Gundersen included this example of the foul treatment out there.

With all the time in the world to pick an example this was the “bad” one she came up with. Joining a panel to ask her challenging questions. FIRE UP THE DISCIPLINARY COMPLAINTS!!! But seriously, choosing to quote this tweet as an example of what she sees as bordering on harassment sends a pretty clear message to diploma privilege advocates: pretty much everything is potentially a C&F issue in our eyes.

This is a threat designed to chill speech. It’s so textbook it could feature in an issue-spotter if the NCBE were a government actor. Though with the sway the NCBE holds over state governments, it’s pretty close when it’s issuing warnings about using the state regulatory process to penalize its critics. A threat made worse when you consider that in many jurisdictions the NCBE is directly involved in the C&F process by preparing reports for the committees. It’s certainly closer to bordering on a state actor than NCBE critics are bordering on harassment.

Professor Brian Frye characterizes Gundersen’s handling of the COVID crisis as a brand of “moral fascism” which is harsh but hard to deny. The consistent refusal to see criticism of in-person bar exams as anything but weakness, the fixation on creating enemy Others, and the willingness to use threats of state action to quell dissent are all hallmarks of a fractured outlook.

Again, harassment is bad, but being angry, confrontational, salty, sarcastic, brazen, or caustic is not necessarily harassment. Policing “civility” is a well-worn trick of people with nothing substantive to say. It’s an amorphous standard self-servingly defined by the supposed victim. For good measure, it’s usually falsely tied to the concept of ad hominem — the logical fallacy of substituting personal attacks on the messenger with substantive argument. The use and abuse of the concept of ad hominem needs to stop. Saying we need diploma privilege because the NCBE clubs baby seals is an ad hominem attack. Saying we need diploma privilege because the greedy jackholes at the NCBE are risking public health despite a lack of evidence that the exam protects the public… that’s just providing color.

Making fun of the fact that the country’s primary mouthpiece against diploma privilege is a product of diploma privilege is the closest the discourse gets to an ad hominem attack and even that is entirely substantive because it directly challenges the credibility of many of her claims.

But maybe she’s got a point. After all, if she’d taken a bar exam maybe she’d have enough sense of basic professionalism not to have issued this threat at all.

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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.