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Depending on who you talk to, there are either far too many lawyers in this country or dangerously too few. Like a lot of things in this world, it’s all about distribution and the glut of attorneys ready to help GloboChem cover up another toxic spill doesn’t excuse the dearth of attorneys available to help an old lady get kicked out of her apartment of 50 years. And unfortunately the economics of getting a law degree in 2020 America means there will always be more of the former than the latter because the financiers need to get paid somehow.

But perhaps allowing limited practice opportunities for non-lawyers could stanch some of this bleeding. Smart advocates with focused legal training but none (or very little of) the debt could be dispatched to work in niche areas of the law underserved by our existing system.

The latest edition of the Legaltech Week panel tackles this issue and more legal technology stories of the week. From the official description:

The Legaltech Week panel of journalists is joined this week by Rohan Pavuluri, cofounder and CEO of bankruptcy platform Upsolve, to discuss his recent article arguing that rules prohibiting the unauthorized practice of law — rules that he says give lawyers a monopoly on providing legal services — effectively work to promote racial inequality.

Here you go!

We must respect the right to disconnect.

Our 24/7 access to technology and each other is a double-edged sword. We’re available to each other like never before, which also means we’re expected to be accountable to each other like never before.

Fortunately, the legal industry is slowly adopting more appreciation for a healthier work/life balance. This dynamic, and the frustrations pushing this trend, have been amplified considerably during the pandemic.

“I’ve noticed that law firm managers have been expecting their attorneys to be hyper-responsive because everyone is homebound. But they’re missing an opportunity to encourage rest and family/downtime, which I believe allows lawyers to refresh and better do their jobs,” said Annie Little, attorney career coach, resume coach, and founder of JD Nation.

The bottom line is that we must give employees the ability to disconnect, and respect their need to do so. My recent discussion about the right to disconnect led to some great tips from experts.

Communication Is Key

Claire E. Parsons, partner and owner at Adams, Stepner, Woltermann & Dusing, PLLC, explained, “I sometimes send emails after hours because that’s when I am working, and I don’t want to forget. But, as a partner, I have trained myself to say, ‘I’m sending this now, but you don’t have to respond right away.’ when I do.”

Similarly, Natasha Alladina, attorney recruiting director at The Partners Group, recommended, “Set up a regular weekly time to discuss ongoing projects. That way everyone stays on the same page and stays accountable while having the freedom to work when and how makes the most sense for them.”

NRB Your Emails

Dawn Edwards Martin, director, business development, at Legalpeople, said, “I heard a technique several years ago, but I don’t think it ever took off in the legal field. ‘NRB’ codes in an email subject line tell the recipients that you need-response-by tomorrow or next week or 5 p.m.” She explained, “Especially when the sender is a manager or supervisor, this signals to the recipient that the message is not urgent just because it is coming “from the top.” Leadership in our industry has an opportunity to communicate responsiveness expectations and confirm the right to disconnect.”

Disconnect Intentionally And Regularly

“Just because we CAN all be on-call 24/7 doesn’t mean we should be. I had a friend who was a family law attorney, and when her clients would call with an ‘emergency’ she would say, ‘Well, I really can’t help you with my law license — you should probably call 911.’” explained Rachel Coll, a certified life coach who helps lawyers rid themselves of romantic drama and enjoy healthier relationships.

A work/life balance is always essential but “especially right now with our work and home lives being so blurred,” said Patricia Baxter, managing partner at Morgan & Akins, PLLC.  She continued, “Disconnecting regularly is the only way to stay strong mentally.”

We’re now more than three months into a global pandemic that is forcing many of us to take care of, teach, and feed our kids while worrying about our parents and completing the typically demanding responsibilities of our day jobs. Without boundaries, all that stress is bound to make us less effective at each.

But let’s take this opportunity to understand that all employees have countless invisible stressors that are also weighing them down outside of work, even during normal, nonpandemic times. As we question the way we’ve been doing business — and see little certainty and a lot of opportunities to change ahead — let’s place a greater appreciation on the right to disconnect and a healthier work/life balance — so that we can enjoy life a little bit more and bring our full selves to work each day.

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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.

In 1828, Congress enacted a tariff on European goods, which basically benefited the northern states and hurt the southern ones. To get a sense of how badly the North and South split on this issue, just google “Tariff of Abominations.” President Andrew Jackson supported the tariff, and he believed that federal laws, whether states agreed with them or not, were the law of the land. Vice President John Calhoun (a South Carolinian) disagreed violently about both the wisdom of the tariff and a single state’s ability to nullify federal law. Calhoun thought that it violated local “liberty” to have the federal government enact laws that bound the states against their will.

Thus, at a dinner in 1830 to celebrate an anniversary of Thomas Jefferson’s birth, Jackson proposed a toast: “Our Union: It must be preserved.”

Calhoun followed up with another toast: “The Union — next to our Liberty, the most dear.”

Now that’s a president and a vice president who publicly disagreed with each other.

A couple of weeks ago, when Secretary of Defense Mark Esper had the temerity to suggest that maybe the American military should be used only sparingly against the American people, President Donald Trump was ready to fire him.

In today’s executive branch, that feels like dissent.

But those are the exceptions.

Most people are very reluctant to disagree with the boss: The boss is naturally likely to think that his or her ideas are good ones. The boss hears plenty of complaining about things that are happening within the organization, the boss doesn’t need to hear more. (During a global partners’ meeting many years ago, the managing partner of a major law firm displayed a slide to the group: “No whining.” Do you suppose anyone in the audience read that to mean, “Oh! The managing partner wants to hear important suggestions that disagree with the managing partner’s own opinions”?) Basically, it’s no skin off your teeth not to propose ideas that go against the grain. The muckety-mucks propose stupid stuff. You do it. They pay you. That’s the deal, isn’t it?

I suspect that two institutional factors increase the stifling of dissent. First, the longer the boss serves, the less the boss wants to hear dissent. Over time, the boss has been flattered for a long time and becomes accustomed to flattery. The boss starts to think that the boss’s jokes really are funny and that the boss’s ideas are uniformly good. The boss doesn’t need to hear dissenting views.

Second, the larger the size of the organization, the bigger the problem.  Suppose the boss really does like to hear dissent. The boss encourages those in the inner circle to challenge the boss. That may encourage the expression of dissent within the inner circle, but it does nothing for those in the outer circle, the seventh circle, or no circle at all. Mere plebeians naturally think:  “That’s the boss. I should agree.”

How can you fix this?

You can’t, but you can hedge against it. You can assign people the role of dissident. Thus, when the company is considering an acquisition, assign a group of people to oppose the acquisition, making all of the arguments as to why the deal would be a bad idea. Those folks may get voted down, of course, but the institution has at least guaranteed that the dissenting view is presented. Those who express a strong dissenting view are doing their job well and are likely to be credited for it.

It may, sadly, take those sorts of formal assignments to overcome the tendency to agree with the boss. It won’t work for the boss simply to say, at the end of the meeting, “Of course you should let me know if you disagree with this.” That’s a call for crickets.

I’m not calling for crickets.

I’m calling for John Calhoun.

(Wait! Wait! That’s just a rhetorical flourish. I’m not really calling for John Calhoun. States’ rights Southerners before the Civil War held beliefs that any sentient person today rejects, as do I. Or am I perhaps more sensitive about this than I should be?)

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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.

Just when you think you have seen it all, there is always something new to surprise you. In over 25 years of legal practice, that maxim holds true today more than ever. Sadly, it proved itself once again when I learned that someone has filed a federal trademark application for the name “George Floyd.” The applicant is not one of Floyd’s relatives or his estate, but a third party that, as far as I can tell, seems to have no affiliation with Floyd. Any number of reasons may exist for this filing, but there is an opportunity here to shed some light on obtaining trademark registrations for surnames (let alone those of deceased individuals) that is worth a closer look.

First and foremost, there is little information on the underlying motives for the filing of the trademark application with the USPTO, but there is a lot we can glean from the filing and its filing basis. The federal trademark application was filed on an intent-to-use basis by an individual, Munemom Mushonga, of Miami, Florida. The trademark application, Ser. No. 88949571 was filed in International Class 41 for “[p]roduction and distribution of television shows and movies.” As an intent-to-use application, it would be safe to assume that Mushonga intends to create (or have created) content for television shows or movies involving Floyd’s horrific death while being placed under arrest by a now-former Minneapolis police officer. So there is an individual who seeks (but has yet) to use Floyd’s name as a trademark for content most likely involving Floyd’s death.

Of course, this applicant is not the first to try to capitalize off of trending terms or catchphrases from current events. In fact, my first article for Above The Law addressed the opportunistic attempts to trademark “covfefe” and why the reasons for doing so were misguided and ill-advised. What is important to understand, here, however, is that this applicant is dealing with far more issues than he realizes and little prospect of success on the merits.

The most obvious issue is the fact that a third-party is trying to trademark a person’s name. Oddly enough, this is not problematic per se — the USPTO permits a person’s name to operate a trademark and obtaining registration.  Specifically, Section 813 of the Trademark Manual of Examining Procedure (TMEP) states that “[w]hen a name, portrait, or signature in a mark identifies a particular living individual, or a deceased president of the United States during the life of his widow, the mark can be registered only with the written consent of the individual, or of the president’s widow, respectively.” The operate requirement here is that consent of the living person (whether that of the living person whose name is being trademarked or the widow of the deceased president). Needless to say, those requirements can’t be met here, but it is not the end of the inquiry.

A bigger issue here is that the name is primarily a surname, and as such, will require proof of secondary meaning. Specifically Section 1211 of the TMEP requires that “a mark that is primarily merely a surname is not registrable on the Principal Register absent a showing of acquired distinctiveness under §2(f).” Whether a mark operates primarily as merely a surname depends on the primary significance of the mark as a whole to the purchasing public, and is shown by evidence supporting the acquisition of secondary meaning. The Trademark Trial and Appeal Board (TTAB) has identified specific five examples of inquiries that may lead to evidence regarding such perception: (1) whether the surname is rare, (2) whether the term is the surname of anyone connected with the applicant, (3) whether the term has any recognized meaning other than as a surname, (4) whether it has the “structure and pronunciation” of a surname, and (5) whether the stylization of lettering is distinctive enough to create a separate commercial impression. Although not exhaustive, it doesn’t take a great deal of investigation to find that the trademark operates as primarily a surname, and that proof of secondary meaning will be essential to registration. I would not get my hopes up on that one.

Whether the applicant is seeking to exploit this tragedy is something I will let the readers decide, but it is hard to escape the notion that this attempt to register Floyd’s name is an exercise in opportunism and misunderstands the bases necessary to qualify for federal trademark registration. It’s bad enough that Floyd has his life taken from him, but it’s something else entirely for someone who does not appear related to him to exploit his name after death. Perhaps this applicant wishes to produce content that has a noble purpose to inform and shape the national conversation, maybe even create a vehicle to financially assist Floyd’s family while keeping his name alive as a brand to help eliminate police brutality and racism. Or … it’s just another attempt to make a buck, which if true, is tragic. In any event, the USPTO will not let this application proceed without strong evidence of secondary meaning. Turns out there is a lot more to federally registering surnames as trademarks than most people realize, and in this case, that fact is most definitely a good thing.

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Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

As bar examiners around the country scramble to draft liability waivers for COVID exposure that have almost no chance of holding up in court, the state of Washington has surveyed the landscape and opted to embrace rationality instead. The state will offer an emergency diploma privilege admission for those signed up for the July bar exam.

The policy extends to graduates of ABA-accredited law schools, with those who don’t meet that meager hurdle and those who are really banking on a portable score eligible to take the UBE at a later date.

This is, of course, the best of all possible results. Not only does it afford those looking to practice in the state immediate access to earning their livelihood, but it cuts down on the space required for the September administration of the UBE. With everyone content to practice in Washington already admitted, the UBE administration will be able to socially distance examinees even more without having to resort to booking more costly venues.

It makes so much sense that it’s disturbing how few states have embraced this solution yet. While some of us would like a permanent diploma privilege plus system that would go hand-in-hand with an aggressive overhaul of the accreditation process to make costly law school diplomas true guarantees of subject matter competence and access to the profession, the present crisis doesn’t require going all the way there. States just need to be willing to say, “we’re writing off 2020 because the freaking plague is back” and start fresh planning the 2021 bar exam.

One byproduct of the COVID crisis will be a sobering look at which state professions are governed by folks with some kind of vision and which are run by mere functionaries who just “square peg, round hole” their existing in-person bar exams because that’s all they’ve ever imagined. That the latter seem to be carrying the day should be upsetting to anyone who cares about the future of the profession.

Here’s the full order, below.

Earlier: First State Opts For Emergency Diploma Privilege Plus Admission
Bar Exam Applicants Forced To Sign COVID Waiver In Case In-Person Exam Ends Up Killing Them

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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.

Miriam Lacroix is the owner of Lacroix Law, PC, an immigration law firm in White Plains, New York. Her passion for serving the immigration community is deeply personal. Her father is a Haitian immigrant who fell in love with a woman from the Bronx. Her parents refused to allow borders to keep them apart, and 30-plus years later, they are glad they didn’t. Lacroix’s work focuses on uniting and reuniting families and has a particular emphasis on helping survivors of domestic violence. 

She is also the creator of the first-ever Black Legal Wellness Forum. This event is for the black community to better understand the ways in which systemic racism is impacting many aspects of their lives, including criminal law, estate planning, employment law, real estate, copyright/trademark law, and immigration. The panelists at the forum will explain how these systems are not serving the black community, their rights under different areas of law, and ways that they can better protect and advocate for themselves when interacting with the law.

I could tell you all about why she decided to create the Black Legal Wellness Forum, but I think I’ll just let her tell you herself: 

“At a time when so many people in this country are taking action and speaking out against the systemic racism that has led to many deaths of black and brown people, I thought about what I could do myself, as a lawyer, to effect change. I realize that police brutality is just one factor of systemic racism. Racism is a power dynamic that affects many aspects of our lives including, but not limited to, how we interact with the law. As lawyers, our job is to protect our clients from the pitfalls that the complexities of the legal system cause them to fall into. 

I have decided to put on a forum that addresses this and invites the community for a free discussion about how the black community can better navigate legal issues across a variety of areas of law. This forum is for the black community to better understand the ways in which these systems are not serving them, their rights under different areas of law, and the ways that they can better protect and advocate for themselves when interacting with the law.”

Lacroix is the host, moderator, and immigration expert of the Forum. Other panelists include Gilbert Bayonne (criminal law), Michelle N. Robinson (trusts and estates law), Faith Mitton (real estate law), Wendy Dolce (employment law), and Jordan B. Franklin (copyright and trademark law). 

The Black Legal Wellness Forum is taking place on June 25 at 7 p.m. EST (virtually, of course) and you can register here. 

This promises to be a great event and, hopefully, just the first of many. I hope you will consider joining, and sharing this event with your professional networks.

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Kerriann Stout is a millennial law school professor and founder of Vinco (a bar exam coaching company) who is generationally trapped between her students and colleagues. Kerriann has helped hundreds of students survive law school and the bar exam with less stress and more confidence. She lives, works, and writes in the northeast. You can reach her by email at info@vincoprep.com.

Goldman Sachs is sorry. Really sorry. Really, really very sorry about the whole Malaysian money laundering, bribery and sovereign-wealth-fund-bilking scandal. Just tremendously sorry about not taking a close enough look at that Tim Leissner guy, or that other guy, or that other, sort of mysteriously rich guy. So, so incredibly sorry that David Solomon has actually said “I’m sorry” a number of times for something that, you know, really wasn’t his fault, if you think about it. Isn’t that enough? Because, honestly, Goldman’s not feeling $2 billion and a guilty plea sorry.

* A lawyer who claims a sleazy, toupee-wearing criminal in the film The Wolf of Wall Street was based on him has lost his defamation lawsuit. [Business Insurance]

* The New York Attorney General is interviewing Amazon workers in a probe over Amazon’s COVID-19 response. [CNN]

* A Florida lawyer is facing ethics charges over a practice at his firm of telling clients the firm settled cases for less money than was recovered and pocketing the difference. [Daily Business Review]

* A new lawsuit alleges that a Drake University coach told a player who accidentally shot another student in the head to lie to the police. [Des Moines Register]

* An appeals court said the judge overseeing Michael Flynn’s criminal case may have picked an “intemperate” lawyer to write an opinion over the Department of Justice’s decision to drop the case. Those are some fighting words. [Fox News]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Movement for Democratic Change Alliance MP Joana Mamombe and party youth assembly activists Cecilia Chimbiri and Netsai Marova were arrested at their lawyer’s offices.

They had visited the lawyer to discuss another case in which they were charged over their participation in a protest last month.

The three women were admitted to hospital with various injuries after they were arrested in that case and said they had been taken to a place out of town by unidentified men who allegedly sexually assaulted one of them.

Their lawyer, Alec Muchadehama, said the three were charged with “making false statements prejudicial to the state.”

“When they reported their abduction to the police, the police are now saying they were not telling the truth,” Muchadehama told journalists outside the Harare magistrate’s court Friday.

He said they “are denying the charges.”

MDC-Alliance spokeswoman Fadzai Mahere queried how the women could be said to have lied about their abduction and torture when they had injuries to show for the assaults.

On arrival at the court Marova was seen limping and using a crutch, and was helped by Mamombe.

The three were remanded in custody until the magistrate rules on a bail application on Monday.

On Wednesday, nine UN special rapporteurs — who do not speak for the UN but report their findings to it — called on Zimbabwe to drop the earlier charges against the women and stop the reported pattern of disappearances and torture.

“Targeting peaceful dissidents, including youth leaders, in direct retaliation for the exercise of their freedom of association, peaceful assembly and freedom of expression, is a serious violation of human rights law,” they said.

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If you only had $1, you would definitely want to use it wisely and stretch it as far as you can. You wouldn’t just throw away 87 cents of your only dollar. Especially if you found out that you could actually spend just 27 cents to achieve the same goal.

Now let’s apply this example to mobility. A gasoline or diesel car’s internal combustion engine (ICE) literally burns fossil fuels and emits harmful gases. In doing all that, it is only about 13% efficient. This is represented beautifully in this wonderful chart from Transport & Environment that was covered this week by Zachary Shahan:

On the other hand, battery electric vehicles’ efficiency is around 73%. (In this article, we will ignore one of Toyota’s favorite technologies, hydrogen fuel cell cars.)

This story easily applies to a lot of countries, but we will again use Zimbabwe as an example to paint this picture as we saw in our recent article. Ditching ICE vehicles as fast as we can makes a lot of economic sense. Petrol and diesel imports account for a massive 30% of Zimbabwe’s total import bill! That’s about $1.2 billion annually. Don’t forget, they spend a little more on top of that to import ICE vehicle spare parts and engine oils, etc.

Zimbabwe has been experiencing a prolonged petrol and diesel shortage for 3 years and counting, with no solution in sight. The country is struggling to raise foreign currency to import these fossil fuels, so spending 30% of its hard-earned foreign currency by literally burning it in ICE vehicles is just crazy! Zimbabwe earns most of its foreign currency from exporting its mining and agricultural products.

After all that work from families trying to make a living toiling on the farms and mines for several months, the country really should be more prudent with all those hard-earned US dollars. Filling up an ICE vehicle’s tank can also be quite a challenge in Zimbabwe, and it could involve waiting in a queue at a petrol station for a day or two! Charging EVs overnight at homes or at office parks and malls whilst they’re parked could help solve this problem. That’s bringing a solution whose value proposition would be convenience. But the biggest benefit would still be on the financial side.

Let’s take a look at some examples. Zimbabwe has been importing around 70,000 vehicles per year in recent times. Most of these are used vehicles from Japan and the United Kingdom. Most people shop online on sites such as Beforward. Yes, buying a car online is actually quite common in this part of the world, as covered here. After making a payment, the cars generally arrive within 6 weeks. In fact, you can even buy a car online with Bitcoin, especially in countries like Zimbabwe where there is a shortage of foreign currency and moving foreign currency can be a nightmare with long wait times as local banks struggle to meet demand. Some of the popular vehicles that are part of the 70,000 are listed in the table below:

Vehicle	Year Model	Mileage	Retail Cost in Zimbabwe (USD)
Honda Fit (1300 cc)	2010	80,000	$7000
Nissan Bluebird (1800 cc)	2010	70,000	$11,000
Toyota Mark X (2500 cc)	2010	90,000	$13,000
Nissan Leaf*	2014	40,000	$15,000

*Nissan Leaf added for comparison purposes. Although, some used Nissan Leafs are now being imported by people as well.

If we take the lower limit from this table and assume all the 70,000 vehicles are $7000 vehicles, that’s at least $490 million spent on importing used motor vehicles per year. Then $1.2 billion to fuel them and the rest of the existing fleet, which is about 1.5 million vehicles.

It would make much more sense to catalyze the adoption of EVs such as the Nissan Leafs, saving the much-needed foreign currency. Reducing or removing import duties and taxes would be a good starting point. The used Nissan Leafs could then end up being cheaper than a used Toyota Mark X. On the total cost of ownership (TCO) front, it’s not even a contest, as the Leaf wins by a mile. Living with an EV in Zimbabwe is not as hard as people may think, as discussed here.

Post published in: Featured