Category: News Feeds

This is top of mind for clients across the board. From what we are seeing, this is not a short-term issue. It’s still unfolding, and we’re still learning about it.

— Alejandro Mayorkas, the leader of WilmerHale’s coronavirus crisis task force, commenting on the fact that clients have sought legal guidance across a variety of practice areas as a result of the coronavirus outbreak. The firm is fielding legal questions from global clients that are concerned about topics ranging from employee safety to supply chain disruption.

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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.

Here’s your daily reminder, courtesy of U.S. District Judge Steven V. Wilson, that the First Amendment does not apply to corporations.

The presidential campaign for Hawaii Rep. Tulsi Gabbard (D-Fantasyland) sued Google in July for temporarily suspending its Google Ads account for a few hours after the June 26-27 debates, a “restraint that had been placed on Tulsi’s speech—at precisely the moment when everyone wanted to hear from her.” The company further suppressed Gabbard’s speech by #Rigging Gmail to send “communications from Tulsi into people’s Spam folders at a disproportionately high rate.” At least according to the complaint filed by her lawyers at Pierce Bainbridge, which also represents the congresswoman in her defamation suit against Hillary Clinton.

Suffice it to say that Judge Wilson of the Central District of California was not impressed. Citing last week’s decision by Judge Lucy Koh of the Northern District of California dropkicking wingnut Dennis Prager’s “First Amendment” suit against Google, the court notes that Gabbard’s claim “runs headfirst into two insurmountable barriers—the First Amendment and Supreme Court precedent.”

“Google is not now, nor (to the Court’s knowledge) has it ever been, an arm of the United States government,” Judge Wilson writes with barely concealed contempt, citing the 2019 SCOTUS holding in Manhattan Cmty. Access Corp. v. Halleck, affirming that “the Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech.”

And NO, hosting campaign ads doesn’t magically transform Google into a government actor. By that tortured logic, every media outlet and website in the country becomes a state agent.

Nor was the court persuaded by Gabbard’s reasoning that Google’s efforts to protect itself from cyber-intrusion implicate “national security,” thus constituting state action for the purposes of the First Amendment.

Plaintiff’s “national security” argument similarly fails. Google protects itself from foreign interference; it does not act as an agent of the United States. Nearly every media or technology company has some form of cybersecurity procedure. Under Plaintiff’s theory, every media organization that took steps to prevent foreign cybercrimes could potentially implicate the First Amendment.

Gabbard’s suit is “dismissed with prejudice” and, for good measure, in case her illustrious counsel is feeling as creative about civil procedure as they are about the First Amendment, “without leave to amend.”

Anyone else getting the impression that federal judges are getting pretty tired of these bullshit fundraising campaigns disguised as defamation suits and First Amendment suits clogging up their dockets? Devin Nunes, take note!

Tulsi Now, Inc. v. Google, LLC et al., Order Granting Motion to Dismiss [2:19-cv-06444-SVW (C. D. Cal., March 3, 2020)]

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

Flexible work arrangements are increasingly changing the face of the legal industry. Paragon Legal is one of the companies leading that charge as an innovative legal services firm that provides highly skilled and experienced in-house counsel to corporate legal departments on an as-needed basis. For almost 15 years, law departments have partnered with Paragon to remain nimble and have flexibility to ramp up and down as their business needs and budgets demand. Paragon has built a unique model and culture that attracts the best legal talent by offering challenging legal work, competitive compensation, and flexibility.

We recently sat down with Mae O’Malley, the founder and former managing attorney of Paragon Legal, to discuss why she started the company in 2006, what has led to its success, and what differentiates it from other competitors in the market.

What inspired you to start Paragon Legal and what were your goals for the company?

The very beginnings of Paragon came completely out of my own personal necessity to find a way to continue to practice law while spending meaningful time with my growing family. At the time that I started Paragon, I was coming off of an in-house job and had just had my third child so was looking for flexible work opportunities. I took a part-time job in-house at Google and needed someone to help me with the personal clients I had gathered over the years because I didn’t want to give them up.

I posted a project-based job ad to the Burlingame moms’ club thinking this would be a good opportunity for another mom, and I ended up getting a man who was looking for flexibility in his schedule because he was an avid scuba diver and wanted to be able to take significant time off during the year. When Google got wind of the flexible working model I had come up with, they asked if I could supply them with more attorneys. From there it grew quickly — both clients and attorneys wanted in — and I had to come up with a name overnight! The model quickly proved to be a great fit for people who wanted to have a meaningful practice but have flexibility at the same time. 

Were there any key decisions or growing pains early on that in hindsight helped you build a successful company?

One thing I intentionally did from the beginning that I think was extremely beneficial was that I wanted to stay very focused on doing only high-end legal work. So when we started Paragon, we hired senior attorneys with at least 10 years of experience, and most had much more than that. To this day, that high-end work continues to be our bread and butter. Other similar companies over the years have tried to expand business lines to cover all kinds of different things and I think they’ve found themselves somewhat stretched to try to do it all while keeping their core business strong. We avoided that temptation. 

As we grew, our marquee client base started to ask for paralegals and contract managers, so we added those offerings, but still at a senior level, which was a very good move for us. It’s important to stay very focused in the early days on your core business and build it up to a point where it’s strong, and then start to think about expanding in other ways based on what your clients are telling you they need.

Another thing we were forced to figure out early on was how to evolve our model to balance the needs of our attorneys for steady income against the needs of the clients to only pay for what they need. We ended up coming up with a very unique model where our attorneys are guaranteed an amount of work that aligns with what our clients need. Now our attorneys have predictability in their hours and steady income, while our clients have visibility into what they’re getting and what they’re paying for.

What distinguishes Paragon from other products or other platforms on the market?

Something that distinguishes us not only from our competitors but from a lot of companies in general is that we’re very employee-centric. We started with the notion of wanting to make sure that our attorneys felt taken care of and valued, knowing that if they were treated well, they would in turn do really good work. That allowed me to run the company until I sold it with almost no investment in marketing, because our marketing was the good work of our attorneys. We thrived on repeat business and client referrals, and Paragon attorneys have always had very high levels of satisfaction because they’ve felt valued. We really wanted this to feel like a career path as opposed to a gig-economy situation.

Why did you decide to sell the company in 2018?

As is true with so many startups, you reach a point where it’s very clear that your potential to grow and to be all that you can be starts to become limited by the type of management you have in place. It’s so often the case that eventually the founder is no longer the best person to be running the company, whether due to skillset or goals or vision. Before 2018, Paragon had reached the point where it could really benefit from bringing in new management that had both the desire and the bandwidth to look at ways to scale the company.

It was a decision between being satisfied growing very organically and gradually, or investing in new management that could really test the ability of the company to expand and to potentially go national or international in a way that we very much feel the brand can sustain.

We’d had many people, including most of our competitors, try to acquire us from about 2008 on. But I never reached a point until 2018 where I felt that I was ready to sell the company, because I was still invested in it and hadn’t found the right people to pass it on to. I was very concerned about preserving the culture. We were very attorney-centric and had an all-female management team at that time, which was something that I was sensitive about. 

I’d been advised by a number of friends who had sold companies that when the time was right, it would just feel right. And it did. When Trista and Jessica came along in early 2017, they were the first women who had ever approached me about buying the company. I thought they had really great ideas for a thoughtful and measured ramp up of the company, and their energy and their vision for the company felt right from the very beginning. I also thought they were well positioned to really understand the experiences and the needs of our workforce, and to continue the culture that made Paragon special.

Can you give us your thoughts on work/life balance and how Paragon plays into that?

We have all sorts of attorneys who are attracted to the Paragon model. We have both men and women who, for instance, are very involved in their local politics or are writing books. We had a movie producer/screenwriter who had a very successful run with us. Whatever it might be, you’ll find that the vast majority of human beings have interests outside of their jobs and outside of the law. Most traditional law jobs, whether in-house or at firms, are 60-plus hour a week jobs, which doesn’t allow for flexibility for either other life interests or spending meaningful time with family.

So I think that there was, and there continues to be, a huge need for models like Paragon’s that provide some small level of flexibility to attorneys who want to continue a meaningful practice but have other things outside of the law that they’re interested in. At Paragon, there’s flexibility in terms of hours, start and end times with clients, and other things that make life easier. In my mind, these are all extremely simple things to ask for, but are unfortunately very hard to attain in corporate America. You just need to build them in from the beginning as the conversation with the client starts, and everyone will be happy.

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Paragon Legal has carved out a niche for itself, creating a flexible work environment for experienced attorneys, paralegals, and contract managers who not only love to do meaningful work, but also crave flexibility and balance in their professional lives. With a workforce as exceptional as the company itself, we can’t wait to see what the future holds for Paragon. Click here to find out more information about current opportunities for attorneys.

The Florida Supreme Court has asked The Florida Bar to undertake a study of the rules governing the practice of law in order to determine whether revisions are needed to improve the delivery of legal services within that state.

In so doing, Florida joins a growing number of states — including Arizona, California, New Mexico, Oregon, Utah and Washington — that are studying changes in lawyer regulation with the goal of enhancing access to justice.

The Supreme Court directed the committee to look into the topics of lawyer advertising, referral fees, fee splitting, entity regulation, regulation of online service providers, and regulation of nonlawyer providers of limited legal services.

The court’s request came in a Nov. 6, 2019, letter to John M. Stewart, president of The Florida Bar, in response to an earlier letter from him suggesting such a study. The court’s letter, signed by Chief Justice Charles T. Canady, said:

“As discussed in your letter, the environment in which legal services are provided has been rapidly changing. In view of that changing environment, the challenges facing Florida lawyers, and the difficulties that many Floridians encounter in securing legal services, the Court agrees that The Florida Bar should conduct a study of the rules governing the practice of law to ensure that our regulation meets the needs of Floridians for legal services while also protecting against misconduct and maintaining the strength of Florida’s legal profession.”

The court asked Stewart to chair the study group and appoint its members. The letter asked that the study group complete its work and submit a final report by July 1, 2021.

The letter went on to say:

“In fulfilling the Court’s responsibility under Article V, section 15 of the Florida Constitution ‘to regulate … the discipline of persons admitted’ ‘to the practice of law,’ we are committed to ensuring a strong and vibrant Bar to meet the legal needs of the people of Florida and to enforcing appropriate ethical standards for Florida lawyers. The foundation of our efforts in this arena is the recognition that The Florida Bar exists to serve the people of our state. We believe that the study we are asking the Bar to undertake can assist us in carrying out this important constitutional responsibility.”

Last month, the American Bar Association approved a resolution calling on states to consider innovative approaches to the access-to-justice crisis and, in particular, to consider regulatory innovations that could improve the accessibility, affordability and quality of civil legal services.

Full text of Supreme Court’s letter to Stewart.

As COVID-19 continues to spread, firms are taking the sort of proactive measures to ensure the safety of employees that the federal government eschews in favor of praying about it. The latest move in the effort to address the spread of the disease comes from Debevoise, who announced the suspension of all “non-essential international business travel.”

The policy excepts only trips approved by senior firm leadership, so your team had better feel pretty confident about that trip before you bug the management.

Effective immediately, the firm is suspending all non-essential international business travel. For any international business travel to be considered essential, it must be approved in advance by me (for lawyers in New York), Arthur Armstrong (for administrative staff in New York), or your Managing Partner (for offices outside New York). Subject to the below, domestic business travel is not affected by this policy.

While the policy allows most domestic travel, the firm isn’t interested in putting employees in contact with large groups of people:

Also effective immediately, the firm is suspending all travel (international and domestic) for conference attendance, including conferences at which our personnel are scheduled to speak. Exceptions to this policy must be approved by me (for lawyers in New York), Arthur Armstrong (for administrative staff in New York), or your Managing Partner (for offices outside New York).

Personal travel is still not regulated by the firm, but management is requiring notification for travel to afflicted countries and a self-quarantine whenever folks return:

We will continue to leave to individuals the decision concerning whether to travel for personal reasons. If you do travel for personal reasons, however, that travel will still be subject to the policy announced on March 2: “You must continue to notify the Managing Partner in your office (or me, if you are in New York) if you intend to travel to any of the following: China, South Korea, Japan, Taiwan, the Philippines, Hong Kong, Macau, Myanmar, Vietnam, Cambodia, Laos, Thailand, Malaysia, Singapore, Indonesia, Italy and Iran. Please note that if you travel to any of these countries or regions – even if only to transit through an airport located in one of these countries or regions on your way to/from another destination – we are likely to ask you to stay out of the office and work remotely for 14 days after your last presence in the country or region in question. Assuming you exhibit no symptoms of COVID-19 at the end of that fourteen day period, you may return to the office.”

If health policies are anything like bonuses — and we suspect they’re everything like bonuses — expect the rest of the Biglaw elite to quickly follow suit.

And then expect Cravath to go over the top.

Earlier: Previous Above the Law coverage of coronavirus

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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.

During a time when health and wellness have finally been taken off the legal profession’s backburner, many firms are trying to help lawyers come to grips with mental health. Lawyers are more likely to suffer from depression than any other profession, but they often suffer in silence for fear of alerting their colleagues about their mental health disabilities and being stigmatized for the rest of their careers. One firm is trying to put a stop to that.

In a partnership between its Wellness Works initiative and its Mental Health Task Force, Reed Smith recently launched the #stopthestigma campaign, with the goal of helping lawyers get the assistance that they need without fear of any career repercussions. The American Lawyer has the details:

Campaign events and activities include:

• An educational program Wednesday led by Mettie Spiess, a certified psychological health and safety adviser and founder of A World Without Suicide.
• A video series featuring lawyers and professional staff at the firm and mental health allies sharing their stories.
• A U.S.-wide mental health and safety leadership training session for firm managers.
• “Wear Green Day” on March 19 to raise awareness of the #stopthestigma campaign.
• An educational program March 26 led by Kelly Rentzel, general counsel for Texas Capital Bank, who will share her compelling story of living with bipolar disorder.

March is Mental Wellness Month, and it’s a perfect time to seek treatment if it’s something you’ve been avoiding doing. Stopping the stigma is an extremely worthy cause within the legal profession. Please take care of yourselves and you’ll find that not only is it possible to survive with a mental health setback, it’s possible to thrive.

Reed Smith Launches Mental Health ‘Stop the Stigma’ Campaign [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.

What the hell? Why is it that so many law professors insist on wrapping themselves in the flag of academic freedom just to drop the n-word? Just earlier today I wrote another story about the repercussions for a law professor who used the n-word twice (spoiler alert, not many consequences). Now comes word that prominent UCLA Law professor and founder and coauthor of The Volokh Conspiracy, Eugene Volokh dropped the n-word at an event.

A UCLA Law student who was at the event in question tweeted out their description of what happened.

That seems like a problematic look. And did you see the line “wholly pronounced the word”? It sure seems like Volokh said it with a real hard R.

I reached out to Volokh, and he confirmed the general contours of the incident. His statement on the matter didn’t deny any of the facts, but rather sought to provide a justification for his language. (The original statement had the n-word written out, those references have been changed to n****r.)

When I teach First Amendment law, I tend to talk for a few minutes each week about real First Amendment events in the news. Last October, when two UConn students were being prosecuted for “racial ridicule” for walking on campus and shouting “n****r” (apparently at no-one in particular) — an extremely rare instance of an actual hate speech prosecution in the U.S., and thus an excellent illustration of the legal rules that we had been learning and the arguments that we had been considering — I discussed that incident in class. As I always do, whether we’re talking about the Cohen “Fuck the Draft” case, the Matal v. Tam “Slants” case, the “God Hates Fags” banners from Snyder v. Phelps, references to killing Jews or to “kikes” from the State v. Lenio Montana group libel prosecution that I had also given as an example in class, or otherwise, I discussed the facts, without expurgation or euphemisms: At a university, and especially at a law school, I think people should talk about the facts as they are. A few weeks after the class, I learned that some students had disapproved, but I didn’t discuss it further with any students.

Then yesterday, right before an event at which a professor from a different law school was talking, someone shouted to me something like, “Volokh, don’t use the n-word today!” (I am not expurgating here, as you might gather; he did say, “n-word.”) The speaker, to whom I was talking at the time, asked me what that was about, and I responded that, last Fall, I had talked about the prosecution of the UConn who had shouted “n****r,” and some students were upset about my quoting that word.

As I mentioned, it seems to me a basic principle of the American university that no ideas or words are taboo, and that when a real incident happens it should be discussed precisely and candidly. Naturally, I would never actually call a student by any such epithet (or for that matter by many softer epithets), but quoting the facts of an incident strikes me as a completely different matter. And this principle is especially important at a law school, where we are training law students who will run into lots of offensive actions and words in precedents, in briefs, in underlying documents, in witness interviews, in testimony, and more. (If you search Westlaw for n****r & da(aft 1/1/1990), you’ll find over 10,000 results just in the cases.)

Further, Volokh shared his response to a student who complained about his language. He made many of the same points, but also trotted out the “use-mention distinction,” complete with citations (see, e.g., Randall Kennedy, How a Dispute Over the N-Word Became a Dispiriting Farce, Chron. Higher Ed., Feb. 8, 2019; John McWhorter, If President Obama Can Say It, You Can Too, Time, June 22, 2015,  (distinguishing “using” from “referring to”)).

I see that argument, I do (I mean, I don’t think it’s a great one, but I see it). But in this instance you have someone specifically asking you NOT TO USE THE WORD. Why is fully pronouncing a racial slur so damn important? Volokh gave a big middle finger to this rather minor accommodation of someone’s feelings. Because he has the “right” to say whatever he wants. I guess maybe he does — no one is saying he should be carted off to jail — but we can all still think he shouldn’t just drop the n-word.

Volokh may want to live in a world where no words are taboo — and that may even be a laudable goal. But I want to live in a world that isn’t tainted by anti-blackness. Until that second goal is reached — one we are far, far away from — it seems a rather small measure to just use a euphemism for perhaps the most hate filled word in the English language.

And let’s be clear — the subject isn’t taboo. No one is missing out on some key component of legal education when you refuse to say the full n-word. Everyone knows what you mean when you say “n-word,” you are just signaling a respect for the people who’ve had that word viciously flung at them. Why is that such a hard concept for (white) people to wrap their heads around?

Earlier: N-Word-Using Law School Professor Gets To Keep His Job
Welcome To Emory Law School — It’s Been 0 Days Since We Last Used The N-Word In Class
Why Can’t Emory Law School Professors Stop Using The N-Word All The Time?
Law School Professor Drops The N-Word In The First Week Of Class
Law School Professor Who Dropped The N-Word In Class Is Back At It
Law Professor Drops Racial Slur In Class Because Otherwise How Will Black Students Ever Learn About Racism?

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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).

Like it or not, technology has become an essential part of our daily lives, which means that when litigation arises, document review is likely to become unduly burdensome to perform. Thankfully, eDiscovery software solutions have kept pace with the rise of technology, but not all tools are created equal.

How can a legal team ensure that the eDiscovery tool that’s chosen will help conduct an efficient review? To streamline the process, you’ll need software that can help you:

• Quickly discover information
• Reveal hidden details in the data at scale
• Act on the information, securely and collaboratively

In a new white paper from Everlaw, you can learn about the challenges and complexities of eDiscovery review, the different ways technology can help, and what legal teams should consider when choosing a new solution.

Fill out the form below to view now!