Category: News Feeds

Here’s a question that’s been making the rounds:

Who led your company’s digital transformation?

1. Chief Executive Officer
2. Chief Financial Officer
3. Chief Information Officer
4. COVID-19

Here’s another question that’s been making the rounds, as companies start thinking about how they’ll reopen:

“What the heck are we doing leasing all that space?”

Perhaps this is a question that should start making the rounds: Will the market for Class A commercial space in center cities soon decline?

That may be the least of our worries during the COVID-19 disaster, but it may be something worth considering.

There are other things that the pandemic will change, many of them permanently.

In the law: Perhaps mechanisms other than in-person case management conferences are a better way to manage cases. In-person conferences are expensive, and they often achieve more quibbling than anything else. We may be learning that frequent video conferences are a better way to manage cases.

We may also be learning that many types of hearings are best conducted online. If a court is going to allow only two minutes of argument on a motion (as frequently happens on “motions days” and as almost always happens before the MDL Panel), perhaps those 120 seconds of argument could be uttered online, rather than in person. Indeed, perhaps all types of routine hearings could be conducted online. We now know that in-person hearings aren’t essential, and courts are becoming accustomed to listening to arguments and testimony over the phone. Why should we ever go back to the old way?

So, too, for many other aspects of society. In the United Kingdom, routine visits to physicians have been conducted by telephone for a long time. The United States has now discovered the telephone (and video conference), and there’s no reason to go back to in-person visits after the pandemic ends.  (Insurance companies may have to rethink their reimbursement policies, but I hope that’s not too much to ask to achieve huge gains in efficiency.)

Online education, too, may now have come of age. (For years, fancy universities said that “students learn as much from their classmates as they do from their professors; that’s why everyone should pay more to attend Hoity-Toity U.” Now that all students are learning from home at Hoity-Toity U, and some students are asking for a corresponding reduction in tuition, it will be interesting to hear Hoity-Toity U argue that the students’ presence on campus actually adds no value at all.) Even apart from my parenthetical aside, if online education remotely resembles in-person education, the online version is a bargain at the price. Students may learn online; employers may come to respect online degrees; and society may move on.

Maybe COVID-19 has accelerated our path to an online future.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

The global pandemic has caused a seismic shift in the possibilities and expectations around the delivery of legal services. How lawyers work, where they work, and what they perceive to be their top priorities are all undergoing true disruption. Those firms that leverage technology to adapt quickly are most likely to not only endure the crisis, but to succeed in whatever landscape lies beyond.

In order to gain an understanding of how law firms are navigating our current challenges, today we are partnering with our friends at AbacusNext, on a new survey. This very brief survey examines technologies, processes, and systems being employed to run today’s firms, from document encryption and regulatory compliance to payment processing and supporting remote work.

There are pressing pro bono needs all around us — even before a pandemic triggered an economic crisis — and allocating the scarce resource of volunteer attorney time is always a challenge. But climate change is the sort of slow motion crisis that produces legal challenges that may be overlooked by firms so focused on the moment that long-term impacts get swamped in the battle for resources.

White & Case offers pro bono services to The International Union for the Conservation of Nature’s Climate Change Specialist Group, and recently sent around an email looking for volunteers to help the organization put together a resource guide for attorneys litigating complex climate change issues that arise around the world. As pro bono calls go, it was a pretty straightforward one:

But Miami-based rainmaker Thomas Lauria wasn’t happy to see the firm’s attorneys volunteer to assist an organization helping foreign attorneys deal with the tangible impact of climate change. In an effort to put a stop to the effort, he deployed the dreaded “Reply All” button to lodge his concerns.

He likely meant for this to reach a more limited audience. But sometimes one seemingly small action, like hitting “reply all,” can have unintended ripple effects that create even more damage. Perhaps even damage that’s not immediately apparent and only manifests some time after the email is sent. It’s, like, metaphorical and stuff.

Putting aside that climate change is only a “political activity” to the extent that the Republican Party has decided to ignore multiple decades of scientific consensus, this doesn’t even make sense within the universe of White & Case’s past pro bono endeavors. White & Case worked pro bono to challenge the “Don’t Ask Don’t Tell” policy that was just as “political” for reasons just as bad. And in this case the assignment is just helping attorneys in other parts of the world bring legally cognizable claims which shouldn’t be any more political than drafting a casebook.

But of course the complaint isn’t that the assignment is “political,” nor is it some kind of significant resource drain for a 2,000+ attorney behemoth, but that it’s a cause that runs afoul of Lauria’s personal worldview. And Lauria can try to own the libs if he wants (and while tipsters say he’s an admitted Trumpian, his political donation history is bipartisan), but that doesn’t mean he gets to dictate the efforts of a global firm of which he is ultimately a small part. There are firms in this world where one partner holds all the cards, but White & Case and its nearly $2B in revenue is not that firm. If the firm embraces efforts to help a nature conservation group, that’s something he needs to suck up. Part of being a partner is recognizing that the platform serves the rest of the firm too.

And in this case, if White & Case is trying to save the Miami office from ending up two feet underwater, that’s good for Lauria whether he’s willing to admit it or not.

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.

Could Booking acquire an 800 number that’s a vanity number, 1-800-booking for example, that is similar to 1-800-plumbing, which is a registered mark?

— Justice Clarence Thomas, asking a question during the Supreme Court’s first remote oral argument session. The high court audiostreamed live oral arguments from afar for the first time in history due to the COVID-19 outbreak. This is first time Thomas has spoken from the bench since March 2019. Before that, he asked a question during oral argument in 2016. Prior to that, he went for 10 years without speaking while oral arguments were in session.

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

The novel coronavirus just keeps on taking swipes at the legal profession. Very few firms are likely to escape the pandemic in exactly the same shape as before.

The latest firm to cut positions in the wake of COVID-19, is New York City-based Davidoff Hutcher & Citron. The firm filed notice under the Worker Adjustment and Retraining Notification (WARN) Act saying that the coronavirus is forcing it to lay off 34 people.

According to Law.com, Jeffrey Citron, co-managing partner at the firm, played up the overall health of the firm saying the decision was “purely preventative” and “playing defense,” noting:

“It was very difficult to have the secretaries working, not being in the office,” he said. While the firm’s attorneys “all have laptops, and most of the attorneys are computer-literate,” he said, it was harder to adapt the work of support staff to the pandemic’s restrictions.

Best wishes to all those who find themselves suddenly out of work.

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

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).

Move over “Florida man” stories, because 2020 is shaping up to be the year of the “Florida lawyer.” That is if Florida attorney Daniel Uhlfelder has anything to do with it. Uhlfelder is the man you’ve probably heard of by now who achieved nationwide notoriety by dressing as the archetypal representation of Death itself in order to caution Florida beachgoers against the dangers of reopening pandemic-stricken beaches too soon.

When I heard of this story, I immediately sent Uhlfelder an email asking for an interview. He responded within just a few minutes (note the stellar attorney responsiveness if you’re a prospective client) and agreed to sit down with me for an interview (over the phone, from a very safe distance). What follows is our delightful conversation, lightly edited for clarity and brevity.

Jonathan Wolf (JW): Thanks for taking the time to talk today. How long have you been practicing law?

Daniel Uhlfelder (DU): Twenty plus years. I graduated in 1996.

JW: Any particular areas of expertise or types of law you’re most interested in practicing?

DU: It’s a general practice firm. I mostly do litigation, civil litigation, commercial litigation, real estate, some family law. Court stuff fits my personality.

JW: So, as you know, we’re here to talk about this practice of dressing up as the Grim Reaper to visit local beaches in Florida. You’re spreading the word about the fact that you think the beaches are reopening too soon. I totally get the impulse to do something to help people make the right choices in this pandemic, but what inspired you to spread your message by dressing up as the personification of death?

DU: It goes back a little bit. For the past two years I’ve been involved in a hotly contested debate about keeping our beaches open to the public. Mike Huckabee is involved here in the panhandle on the other side of that debate, he and other powerful people have been trying to privatize their beaches.

JW: Like the Mike Huckabee?

DU: Yeah, that one. I went from 400 Twitter followers to tens of thousands after an exchange with him, and used the notoriety from that to start a PAC in February to help promote keeping the beaches public. Of course, that’s right when the pandemic struck.

So, I went to a paint store to get some masks, and they had a whole hazmat suit there that I bought when I saw it, not knowing how serious this all would get. It was actually a full body suit for painting, but looked like a hazmat suit.

Driving, I saw tons of people out on the beaches during Spring Break. There were two universes of people: people staying home to fight the pandemic, and people hitting the beaches. So, I wore the hazmat suit on the beach as a kind of commentary on this situation, which got a lot of attention.

I also filed suit pro bono against the governor to try to close the beaches during the pandemic, but it’s this image of this lawyer on the beach in a paint suit that looked like a hazmat suit that really got things moving. Through a lot of work, we got the beaches mostly closed to reduce risk during the pandemic.

Then almost as soon as we got some of this success, they started talking about reopening the beaches again, too soon. The hazmat suit wasn’t doing enough, so the death suit was the next step.

JW: You told me about where you got the paint suit. Where’d you get the Grim Reaper getup? Is it homemade?

DU: I ordered one online from Walmart and it was way too hot, and looked cheesy, so I asked a friend of mine who makes clothes here to make me one. She suggested making one out of linen. Linen is much better for a Grim Reaper suit on the beach, if anyone wants to make their own.

JW: The reports of you storming the beaches of Florida dressed as Death itself have been widely reported on — CNN, The Guardian, BuzzFeed, those are just a few of the news outlets reporting on this, you were even talking with the ABA Journal when I first called — how are you dealing with this newfound notoriety?

DU: I’m pleased with it. It’s raised awareness of what’s going on in Florida. A big part of change is informing people of what’s going on, and I’ve informed a lot of people. I just want to be strategic about what I do with this increased level of interest now, so I can use it to promote the common good.

My parents always told me talk is cheap, what are you going to actually do? I’m really happy about the widespread interest in what I’m doing and in turning all this interest into action.

And since you’re a lawyer writing for a legal website, I’ll just say that my father was a lawyer, and lawyers in previous generations took on public interest issues, I saw that happening. But I’m not seeing that as much today. Being a lawyer isn’t just about making money, it’s about doing things to help people. I’m not on the same level as Louis Brandeis or Thurgood Marshall, but lawyers now are so afraid to do things that might offend people that they won’t take a risk to do the right thing.

JW: I agree with that.

DU: I would like to see some kids in law school taught how to be good citizens. Don’t know what they’re teaching in law school now, not how to draft an interrogatory. Should at least teach some public service.

JW: Personally, I love seeing lawyers with personality and some eccentric flare. But have you gotten any flack from people offended over this?

DU: I probably got three emails since we’ve been talking. You wouldn’t believe some of the stuff people critical of me are saying. I’m Jewish, my grandfather escaped Nazi Germany, I had family who died in the Holocaust, and I’m getting some anti-Semitic crap. Also been getting some lawyer stuff, calling me an ambulance chaser, that kind of thing. My response is, what are they doing to help society?

JW: That’s awful to hear. I get a lot of hate mail myself. Just delete it. I always get more positive emails from readers than negative ones though, so I hope you’re also getting the message that there are plenty of people who support what you’ve doing.

DU: You can be a great lawyer and a great public citizen; they aren’t mutually exclusive. I’m doing this as a good citizen, even if some people aren’t thrilled with it. That’s what’s lacking in the legal profession.

Do you have any other questions for me?

JW: Just a couple, and these will hopefully be a little more lighthearted. You probably don’t know this about me, but I have a 12-inch tattoo of the Grim Reaper covering the side of my torso. Do I have to worry about any type of intellectual property issues if I show up shirtless at one of the beaches you’re touring?

DU: You need to send me a picture of that.

JW: Will do. Last but not least, I know you’re not doing any of this for business purposes, but I’ve noticed you have a nice law firm website. Would you like to plug that or anything else to my readers?

DU: Sure. The website explains what we do. If you have a legal situation in Florida, look us up. We’re in a small community, but I try to provide big-city type service. I deal with a lot of high-end properties and disputes. I take my practice really seriously. I’m always thinking like a lawyer, and you don’t have to tell me a lot of stuff for me to get the issue in an instinctive sort of way.

I love what I’m doing. I love practicing law, and by loving what you’re doing, I think you do a better job.

***

So, there you have it. My thanks to Mr. Uhlfelder for taking some time to chat with me on a lovely Saturday morning. To anyone who might be able to use his services, you can find his law firm website using the link in this sentence. Cool though it may be, I suspect he’ll change out of the linen Grim Reaper costume before your initial consultation.

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

If you thought the weekend would somehow stem the rising tide of layoffs, furloughs, and salary cuts that have become Biglaw’s new normal, then you were wrong. May the Fourth be with you if you’ve yet to hear what your law firm’s plans are, whether good or bad.

Today, we have news from Pillsbury, a firm that came in 62nd place in the most recent Am Law 100 rankings, with $677,320,000 in gross revenue in 2019. Pillsbury’s chairman, David Dekker, sent a memo to all employees, describing the “shared sacrifice” that everyone would need to take part in to protect the firm from layoffs. “We know that any sacrifice can be painful,” he wrote, “and hope to scale them in a manner such that they are tolerable for all.” These are the firm’s austerity measures:

1. Starting in April, partner monthly draws were reduced by a minimum of 25 percent, on a progressive scale so that the higher a partner sits in the draw, the larger his or her percentage reduction;
2. Starting with May 15 payments, the firm will be temporarily reducing the compensation of associates and counsel in the United States by 20 percent; and
3. Starting with May 15 payments, all staff compensation will be reduced by up to 15 percent for those who make more than $100,000, except for chief officers who volunteered to take higher reductions, commensurate with those of partners. Employees making less than $75,000 will not be impacted.

“We sincerely hope that this is a short-term measure, although at this point we cannot precisely forecast its duration,” Dekker cautioned. He says he’s hopeful that the firm will be able to offer an “expanded discretionary bonus program” in the future to make up for “at least some of the reductions experienced.”

We reached out to the firm for comment, and a spokesperson had this to say:

Pillsbury has had a strong start to 2020 but the pandemic is both unprecedented and unpredictable, and economic conditions around the world continue to deteriorate. We have therefore implemented a “shared sacrifice“ approach involving temporary reductions of partner draws and associate, counsel, and staff compensation. Partners are leading the way, with the largest reductions.

Hopefully these salary cuts are enough to prevent the firm from conducting layoffs.

(Flip to the next page to read Pillsbury’s memo on salary cuts.)

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

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.

As has been widely reported, the New York Board of Law Examiners (BOLE) last Thursday confirmed that the Uniform Bar Examination (UBE) originally scheduled for late July in New York would be administered on September 9 to September 10 instead. No surprise there. What was surprising was the related announcement that BOLE would discriminate in favor of the 15 ABA-approved law schools located in New York state by giving graduates from these schools an exclusive 10-day window (from May 5 to May 15) to apply for September-test seating, before allowing graduates from out-of-state schools to apply for any seats that may (or may not) be available after the in-state schools were served.

I say this is surprising because it is unfair. And unconstitutional. And because one would expect the highest court in New York, which oversees BOLE, to care about such things.

BOLE has a hard job. Because New York is a UBE jurisdiction, and because it may have to administer the September test in a manner that respects social distancing, BOLE may face more demand for test seats than it can accommodate.

But when times are tough, and when there is not enough of something to go around to all who might deserve it, our leaders must set the right tone and the right example. Whether it’s toilet paper or bar-exam seats, hoarding is wrong.

In response to Thursday’s announcement, a group of 21 law deans (I was not among them), from schools outside New York (including Yale, Harvard, and the University of Pennsylvania) whose institutions accounted for over 2,000 New York-bar takers last year, wrote a letter to New York’s Chief Judge. The deans pointed out that many of their 3L or LLM students have returned or relocated to New York to finish the semester and study for the New York exam. For these and other students, traveling to take the test in a UBE jurisdiction outside New York may be stressful and perhaps physically risky during a pandemic. The deans identified scarcity as a key driver of the problem, and offered various suggestions to help — including “[c]reating seats for New York’s administration of the UBE outside of New York State, including, potentially, using some of [the 21 signatory] schools as venues,” and “[o]ffering a second date for New York’s administration of the UBE [on] September 30-October 1 …”

I commend these deans and their earnest efforts to alleviate a scarcity that may be somewhat artificial in the sense that it can be alleviated with creative flexibility. But artificial scarcity is not the only — or even the core — problem with BOLE’s decision.

BOLE’s seat-allocation policy is fundamentally flawed because it is discriminatory — it fails to treat law schools (and their students) throughout the country equally. Scarcity is a fact of life in most situations, and even if the measures suggested in the deans’ letter are adopted, there likely will still be more people who want to take the test in New York in early September than can be accommodated. (In this vein, taking the test in early October is not the same as taking it in early September, and taking the New York bar in, say, DC — if a DC school provides space — is not the same as taking it in New York.) In doling out the September New York-venue slots, BOLE must act fairly and legally, and can’t discriminate against out-of-state institutions (and their graduates) in ways that violate the Commerce Clause of Article I of the Constitution.

The Commerce Clause was the framers’ first line of defense against corrosive barriers to trade and economic balkanization among the states. Even in the absence of affirmative congressional action, the Commerce Clause generally forbids states from favoring in-state economic actors over out-of-state competitors. When a state explicitly treats in-state businesses differently than out-of-state counterparts, federal courts apply a strong presumption against the law and will uphold it only if it survives a form of strict scrutiny — one that requires the law be necessary to achieve an important (and innocent) purpose. BOLE’s announced policy explicitly treats all in-state law schools differently than all out-of-state law schools. It sends a message to law schools and prospective students, at this crucial time when none of us knows how long COVID will remain a problem, that if you want to take the New York bar exam, students from Columbia will be preferred to students from the University of Chicago, and students from Fordham will receive better treatment than those from Northwestern or Illinois. True, maybe people wouldn’t necessarily choose which law school to attend based on this factor alone, but if BOLE can discriminate (openly) a little, then presumably it could do so a lot. And in any event, even a $10 facially discriminatory tax targeting out-of-state entities is invalid unless dictated by a strong government interest.

It’s hard to see what interest could justify BOLE’s policy here. If BOLE believes that graduates from New York-based schools are more likely to be New York citizens than are graduates from out-of-state schools, it runs smack dab into Supreme Court of New Hampshire v. Piper, where an eight-person majority in the Supreme Court said in 1985 it violated the Constitution for a state to reserve bar membership to residents of the state.

Nor does (or could) BOLE suggest that all New York-based law schools teach New York state law more broadly or deeply than do out-of-state schools. And New York’s adoption of the UBE demonstrates it doesn’t use the bar exam to ensure competence in New York law subjects anyway.

What about the possibility that New York-based law school graduates are less likely (than graduates of out-of state schools) to take their UBE score and leave the state to practice elsewhere? There is no empirical evidence showing that this is true, and in any event New York could easily develop other, more calibrated, indicia of likelihood to practice in the state (if that be a legitimate objective) beyond the very crude tool BOLE is using, based on where a law school someone attended happens to be located.

Finally, what about the fact (mentioned by BOLE) that (some) in-state law schools offered to help provide space for the September exam? That can’t justify BOLE’s action. Those New York-based schools that offered space did not do so, I am confident, on condition that they receive favorable treatment. Indeed, I expect most if not all the New York law deans reject homerism as a matter of principle, and frankly I am surprised none of them has said so publicly yet. And in any event, schools outside of New York have made the same offer of space.

In short, it’s hard to imagine any of these (or any other) possible justifications surviving the strict scrutiny applicable to explicit disparate treatment between in- and out-of-state institutions. Truth be told, I would guess most federal judges and constitutional law professors would find a case against BOLE here to be pretty easy on the merits.

Beyond the likely unconstitutionality, think of the message BOLE, alongside the rest of the state, is conveying. We are one nation. New York needs ventilators and masks and doctors, so please send them. Rhode Island authorities are outrageous (and they are) when they target New York license plates. And yet it’s okay for us to discriminate against other states and hoard resources when it serves our needs?
How would the New York judges and New York-based schools feel if the 49 other states said graduates from New York schools can’t get seats at their bar exams — or be eligible for licenses at all? Or if every state discriminated against all graduates from out-of-state schools? That is precisely the kind of economic retaliation and disintegration the Commerce Clause was designed to avoid and to chide, and yet it is exactly what New York is encouraging.

New York is a great state, and this overt favoritism is beneath it. It is, after all, home of the Big Apple, not the Rotten Apple.

Vikram Amar is the Dean of the University of Illinois College of Law, where he also serves the Iwan Foundation Professor of Law. His primary fields of teaching and study are constitutional law, federal courts, and civil and criminal procedure. A fuller bio and CV can be found at https://www.law.illinois.edu/faculty/profile/VikramAmar, and he can be reached at amar@illinois.edu.