Category: News Feeds

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. Olga founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. Olga also co-founded SunLaw, an organization dedicated to preparing women in-house attorneys to become general counsels and legal leaders, and WISE to help female law firm partners become rainmakers. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can email Olga at olga@olgamack.com or follow her on Twitter @olgavmack. 

Yesterday’s testimony of former Ninth Circuit clerk Olivia Warren rocked the legal world. Given during the House Judiciary subcommittee hearing on misconduct within the federal judiciary, Warren’s powerful testimony detailed the sexual harassment and abuse she was subjected to during her tenure at the Ninth Circuit by the supposed liberal lion of the circuit, Stephen Reinhardt.

As the shock begins to wear off, the next question on everyone’s mind is what in the hell do we do about it? Because, make no mistake, Reinhardt is far from an isolated bad actor. Disgraced retired judge Alex Kozinski was accused of pernicious sexual harassment in 2017, and more recently, district court judge Carlos Murguia was reprimanded for his “inappropriate behavior.”

But what can actually be done to federal judges (with their lifetime appointments) accused of misconduct remains an open question. Ethical inquiries are stymied when judges decide to leave their current job rather than deal with the controversy. (The inquiry into Kavanaugh’s behavior disappeared because he left the D.C. Circuit when he got elevated to the Supreme Court. The inquiry into allegations of sexual harassment in the chambers of once-prominent Ninth Circuit judge Alex Kozinski were halted, mid-controversy, when Kozinski handed in his retirement papers. Judge Maryanne Trump Barry pulled a similar move when she retired from the Third Circuit, ending all hope that an ethics inquiry would reveal whether the judge was involved in tax evasion. When federal judges embroiled in controversy retire, they do so with full pensions.) And even if judges stay on the bench amid controversy, the consequences haven’t been particularly severe. (Judge Murguia was back on the bench a week after he was reprimanded for sexual harassment, and any further repercussions remains an open issue.)

So… yeah, what should be done to federal judges accused of misconduct is a hot button issue in the legal industry.

One of the results of Warren’s testimony has been the onslaught of congresspeople coming forward to say, yes, this is an issue we need to deal with. As Law.com reports, Rep. Hank Johnson, the chairman of the courts subcommittee, said:

“[S]ystemic harassment, discrimination, and abuses of power are entrenched in our federal court system.

“Our witnesses testified that the existing sexual harassment protections, including the reporting framework, are clearly inadequate. We must create reporting avenues that protect victims and their confidentiality,” Johnson said. “I look forward to being part of the solution as we change the federal courts into a safer place to work for all employees.”

And Rep. Hakeem Jeffries — himself a former SDNY clerk — said he wanted to hear from more stakeholders as the rulemaking process moves forward:

[I]n considering future hearings, [Jeffries] would like to hear from “a panel of judges who have rulemaking authority in the context of the atmosphere that exists for clerks and other employees of the judiciary.”

Jeffries added he would also like to hear from prominent law school deans who he believes could help shape the discussion.

Rep. Martha Roby said she is “committed to rigorous oversight of the judiciary to ensure the rights of employees and the systems in place to report abuses are widely known and effective.”

And Republican Rep. Ben Cline said he supports “a discussion to further improvements to the process to make it more transparent, to protect confidentiality and to ensure that every victim is heard.”

But behind all this flowery speech from both sides of the aisle, what the actual consequences for misconduct in the federal judiciary will be remains uncertain. The Judicial Conference working group focused on misconduct reforms was formed two years ago, and though they’ve released a report on how to change policies, actual change for clerks and other court employees on the ground hasn’t been realized.

Hopefully, powerful testimony like Warren’s will spur lawmakers and courts to make some real changes — and quickly.

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).

James Baldwin famously wrote, “Money, it turns out, was exactly like sex: you thought of nothing else if you didn’t have it and thought of other things if you did.” Thankfully for us, Baldwin was not a trial lawyer but a great writer, so we have great lines like that and many great books and stories. But if he had been a trial lawyer, he pretty much could have replaced “money” and “sex” with “logistics.”

Let me explain what I mean by logistics. It’s all those things that inexperienced lawyers may think of that just get done, by a paralegal, or some administrative person, or someone. But just as Oscar Madison of The Odd Couple learned when making turkey that gravy doesn’t simply “come when you cook the meat,” my colleagues and I know that all the logistical work you must do at trial or any evidentiary hearing only happens because you think about it, plan for it, and make it happen.

You need to think about how everything will work in court. Will you need to do everything on paper, or can it be by way of electronics, or both? If paper, do you need binders? How many? For how many people? If electronics, what does that mean? Does the court have video screens or tablets, or do you need to provide them? If the court only has one shared screen for half a dozen jurors, you should think about getting tablets or some other video screens.

Once you think everything through, you need to plan — weeks, at least, before trial — for everything. Great, you have the binders, but try them out since they might be the wrong size. Okay, you’ve ordered the tablets, but then you realize you need a judge’s order to allow them in court. Get the order. Plan every aspect of every step.

And then make it happen, and that includes doing any dry runs you can. Most court clerks or arbitration case managers welcome a lawyer asking them how things should be, or what the lawyers can or cannot do, rather than being the presumptuous professional that lawyers can often be. Don’t aspire that it will work out; try it out to make sure it all works out.

If you and your team handle all the logistics, then it will be, as Baldwin instructed, like having enough money or sex. You won’t think about, and you can think about those “other things” like winning your case. But if you do not handle the logistics right — if you do not have the copy of the exhibit, the access to the internet or power you thought you did, or the ability to show the jurors and judges the same thing at the same time — then you will drown, and think “of nothing else,” including how to win.

John Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at john.g.balestriere@balestrierefariello.com.

End of semester law professor appreciation is a thing and classes feel inordinate amounts of pressure to top the class before them. This pressure generally comes from the professor themself, who delights in pitting the new class against history. My Civ Pro professor OPENED THE YEAR by showing off what the class before had gotten her — a football jersey of her favorite team with “12b6” as the number.

Professor Leah Litman of Michigan now has a tweet to show future classes. Her class decided to serenade her with a full on harmonizing choir.

All right folks, time to step up. Let us know when you top this. We can do a round up of the best professor appreciation gifts at the end of the semester if enough of you do something epic.

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.

A few years ago, The Lens exposed a super-shady tactic being used by Louisiana prosecutors. In an attempt to obtain a bit more compliance from witnesses in criminal cases, the Orleans Parish District Attorney’s office started issuing fake subpoenas to witnesses that contained (an also-bogus) threat of imprisonment.

Rather than do it the legal way — using office letterhead with no threat of incarceration — the DA’s office opted for a hard sell tactic that deliberately mislead citizens. The office claimed this was fine and that no one paid attention to the big, bold print promising jail time for not cooperating.

Two weeks after The Lens exposed the practice, the lawsuits began flowing in. Some lawsuits sought copies of the fake subpoenas the office had issued. Others sued over the practice itself. Crime victims, who had been falsely threatened with being treated like criminals themselves, sued the DA. The problem with this is prosecutors are generally given absolute immunity which makes them nearly impervious to civil lawsuits.

Fortunately, a Louisiana federal court allowed the lawsuit to proceed, finding (on very narrow grounds) absolute immunity couldn’t be stretched to cover every bit of this nasty, deceitful scheme.

This Court finds that granting the Individual Defendants absolute immunity for allegations of systematic fraud that bypassed a court meant to check powerful prosecutors would not protect the proper functioning of a district attorney’s office. It would instead grant prosecutors a license to bypass the most basic legal checks on their authority. The law does not grant prosecutors such a license.

The DA’s office is still hoping to shut the lawsuit down. It appealed the lower court’s decision, but it’s not finding any receptive judges at the higher level. Again, the DA is pitching absolute immunity — a complete, judicially-approved whitewashing of all its sins. This pitch did not perform well at the oral arguments.

It was unclear when the three-judge panel of the 5th U.S. Circuit Court of Appeals would rule, but panel members sounded clearly skeptical as W. Raley Alford III, attorney for the prosecutors, made his case.

“Threat of incarceration with no valid premise?” Judge Jennifer Elrod said at one point during arguments. She later drew laughter from some in the audience when she said, “This argument is fascinating.”

“These are pretty serious assertions of authority they did not have,” said Judge Leslie Southwick, who heard arguments with Elrod and Judge Catharina Haynes.

Tough to retain immunity without a lawful premise. As for the DA, he’s not willing to back down from his assertions the fake subpoenas were a net good for the community he inflicted them upon. DA Leon Cannizzaro was filled with compassion when he falsely threatened people with arrest for not complying with a fake subpoena.

Cannizzaro also has said the warrants are rarely used to arrest victims of domestic violence or sexual crimes.

What a guy. Material witness warrants were rarely used to further traumatize victims of trauma. For everyone else though, Cannizzaro was willing to jail crime victims until they talked.

The lead plaintiff said she was jailed after declining to pursue charges against a man who shattered her cellphone during a fight. Cannizzaro’s office responded to that part of the complaint by saying the woman was legally incarcerated after avoiding legitimate court-issued subpoenas.

Oh, okay. Given the office’s routine deployment of fake subpoenas, it’s a bit rich to accuse them of dodging the real ones. Also, someone refusing to press charges shouldn’t be locked up until they decide to assist prosecutors in prosecuting a case the crime victim has no desire to see prosecuted.

Hopefully, the appeals court will uphold the lower court’s decision and prevent the prosecutors from dodging accountability completely.

Court To Prosecutors Who Sent Crime Victims Fake Subpoenas Threatening Them With Arrest: Pretty Sure Immunity Doesn’t Cover That

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I think it’s time to stop the tweeting about Department of Justice criminal cases.

I’m not going to be bullied or influenced by anybody … whether it’s Congress, a newspaper editorial board, or the president. I’m gonna do what I think is right. And you know … I cannot do my job here at the department with a constant background commentary that undercuts me.

— Attorney General Bill Barr, in comments given during an interview with ABC News, about President Donald Trump’s constant Twitter critiques about the way the Department of Justice is operating. Barr went on to state that Trump’s tweets “make it impossible for me to do my job and to assure the courts and the prosecutors in the department that we’re doing our work with integrity.” For what it’s worth, Barr claims Trump has “never asked me to do anything in a criminal case.”

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.

Lateral Link, a prominent legal recruiting firm with offices across the United States and Asia, announced today that David Comerford, the former Co-Chair of Akin Gump’s Litigation Practice, has joined as a Senior Director in their Philadelphia and Washington D.C. offices. His focus will be on placing partners and groups into top law firms throughout the Northeast and Mid-Atlantic.

Per Comerford, “Lateral Link offered an efficient, collaborative, nationwide platform that embraces the realities of today’s legal market.  Without artificial geographic or practice limits, Lateral Link takes a practical approach that maximizes recruiters’ assets to the mutual benefit of lateral attorneys and law firms. In addition, the people I met at Lateral Link are down to earth, have practiced at the highest level with some of the biggest and most prestigious law firms in the world, and are 100% committed to providing first rate service.”

Comerford holds a B.A. in History from the University of Virginia and a J.D. with honors from Rutgers University School of Law. During his 22 years at Akin, he held many leadership roles, including membership on the Partner Admissions Committee, Co-Chair of the Litigation Group, and Partner-in-Charge of the Philadelphia office. In those positions, Comerford vetted hundreds of partner candidates, analyzed strategic and firm culture fit, and helped integrate lateral partners into the firm. “I was fortunate to contribute to the continued evolution of a great firm in many ways, including through organic and lateral growth. For my next act, I wanted something that similarly would bring the satisfaction that comes from helping people build something, while leveraging my assets of experience, market knowledge, network, and judgment,” he noted.

Ryan Belville, Co-Managing Principal of Lateral Link, added, “David is a fantastic addition to the team. His background, appetite to build, and breadth of network all sync perfectly with our growth plans in the Northeast.”

As a high stakes Commercial Litigator, Comerford helped businesses and individuals solve complex problems and protect their brands and assets, for which he received recognition for by The Best Lawyers in America for Commercial Litigation, Chambers USA: America’s Leading Lawyers for Business for Securities Litigation, Pennsylvania Super Lawyers and the Irish Legal 100.

Comerford brings with him to Lateral Link 28 years of Biglaw experience and trusted judgment to help partners, associates and law firms find their next great opportunity.

About Lateral Link

The major Am Law 200 and specialty firms partner with Lateral Link as their go-to legal recruiter. With offices in over a dozen cities across the United States and Asia, Lateral Link’s established relationships and reputation position the firm to attract and deliver the best legal talent. Over the past 14 years, Lateral Link has completed thousands of successful placements as a best-in-class legal recruitment agency.

Lateral Link is one of the top-rated international legal recruiting firms. With over 14 offices world-wide, Lateral Link specializes in placing attorneys at the most prestigious law firms and companies in the world. Managed by former practicing attorneys from top law schools, Lateral Link has a tradition of hiring lawyers to execute the lateral leaps of practicing attorneys. Click here to find out more about us.

Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome Josephine M. Bahn to our pages.

“Well, it’s not like you’re going to have another one right away or anything, right?”

Oof. My first day back from maternity leave was off to a rougher start than I imagined. I came back to work after having my daughter, a month early, after a little more than eight weeks off. I didn’t have any more sick or annual leave to burn through, and the federal government didn’t have a paid family leave policy at the time. I know what you’re thinking: “Wow! 1999 must have been a crazy time!!!” But it wasn’t 1999 — it was 2019.

I’m married to an attorney. Same number of years in practice, same involvement in “extracurricular activities” outside of work, pretty much on par with me in all things, except one: he is a he, and I am a she. That matters.

My husband was out of work for one month, but when he was out, he was offered the opportunity to work “part time,” to minimize the hit on his leave. When he had finally exhausted that leave after one month, he was welcomed back with open arms. “Can we see pictures of Baby Ruth?” “How are you feeling?” “Are you getting enough sleep?” Honestly, it was so supportive, I was really excited for him; his office and coworkers made his transition back something to envy. He got put back on all his cases, given new work assignments that were even a stretch for his skills, and they asked him to attend new training opportunities to become closer to a subject matter expert in an area in their office. Too cool, right?

Here was my experience.

I came back early because I was out of paid leave, but I was afraid to also take unpaid. I know that I’m fortunate that I had a federal job — one that provided any paid leave. But I was still a conditional hire, within the first two years of employment — and I was up for a permanent position at a higher grade, and I just couldn’t risk it.

So I worked.

It wasn’t just my day job that seemed to have these issues.

I’m running for the American Bar Association Young Lawyer’s Division Secretary position in a contested election this year. The person becomes Chair of the YLD after three years — I’d be representing over 100,000 young lawyer members. The campaign is long — a year to be exact. When I announced that I was running, I went to an event at the Annual Meeting with my daughter strapped to me in a front carrier. While at an event, a senior division leader said in front of a crowd that people are going to constantly not see past me having a child, that I would be perceived as unfit for the job because I had a kid. I mentioned earlier that my husband’s pretty involved in this group — and that leader said my husband wouldn’t face the same critiques, because “it’s different for men and women.”

So I worked.

I worked when my daughter couldn’t sleep through the night, drinking Diet Coke by the case for the caffeine. I worked when I felt like the assignments I was getting weren’t sufficient for the job I had taken. I pitched — no, begged — my boss to get on cases that I felt would advance my career. I worked harder outside of work through my bar association work, volunteering at the nonprofit board I sat on, and then I took on more pro bono cases. I worked through months of postpartum depression that I refused to acknowledge because I was afraid of the stigma of mental illness and how I would be perceived.

So I worked.

I write all of this knowing that so many parents — moms and dads — do the same. There are so many sleepless nights that parents have, so much work to do, and so much time they feel like they aren’t giving enough to their child.   But nonetheless, it is different for women.

Another example: last week, I had to get a new phone for work — everyone was getting them. A colleague of mine from another group happened to be there at the same time. I was lamenting to our IT staff that my new phone wasn’t working and he said, “It’s probably not working because you’re getting fired for taking too much maternity leave.”

Too much maternity leave.

It’s comments like these, the meetings and conference calls that folks schedule after my work hours when they know I do afternoon pickup, and the inevitable, “Well, can you really travel to that city for this case because ya know, you’re a mom.”

Because you’re a mom.

My husband doesn’t deal with that. He’s a pretty awesome #girldad, and I’m lucky to have him as a partner, but no one batted an eye when he went to LA for a week for work. People understand his days off, sick leave, and working hours, and don’t schedule meetings during those times.

Maybe it’s because he’s a dad, and I’m a mom, but it’s still not equal. So, I’ve spent the past 10 months doing things to change the conversation, improve my work and outside activities, and continue to be the best mom I can be for my insanely smart and independent child.

We bring Ruth to everything — meetings, conferences, dinners. She’s there. When we can’t bring her, our family team helps us out tremendously. I know I’m really lucky to have our team — many parents simply don’t.

I mark off time that is exclusively for her — Mama-Ru days. I don’t check email, texts, and I don’t take calls. We just hang out and do things she enjoys. I carve out that time, so I don’t beat myself up when I miss bedtime for the third time this week. I also put up boundaries where I can. I’m much more deliberate with my time — I only say yes to things that will advance my career or goals and that I am willing to decrease my time with Ruth for. I advocate for myself at work thinking, “What example should I be showing for her?” I’m better because I have a baby, not worse.

Oh, and that election I mentioned — I’ve reached out to folks across the country. I’m upfront about having a baby, and I talk about the team that helps me through. I talk about what I want to do if I win, and how I plan to tackle young lawyer-related issues like ballooning student debt, access to the profession, equality in the profession, etc. The one thing that never comes up on these calls from the person on the other end? That I’m a mom.

You can do it, just plan, have patience, and don’t be afraid to bring your kid around every now and again.

Because you’re a mom, or a dad, or a caregiver, or the best Pop Pop ever.

If you do good work, folks recognize it.

Because I’m a mom and a lawyer and a bunch of other things, but being a mom, well, that is okay with me.

Earlier: Mothers At Law: Achieving Meaningful Success In The Legal Profession

Josephine (Jo) M. Bahn is a federal government attorney licensed to practice in New York and the District of Columbia.  She practices banking law, primarily in consumer and fraud litigation. She is currently a candidate for ABA YLD Secretary in a race against Jerome Crawford of Detroit, MI, and the slate of candidates closes at the Midyear Meeting. For more information on Ms. Bahn see: joforyld.com.

Did you realize that you can’t ask your clients to sleep with you in exchange for legal services? It’s strange but true! Be sure to brush up on this before your next big case or else you could end up with egg on your face.

Or, you know, in jail. Which is what happened to 29-year-old Miami attorney Juan Mercado, who was arrested on bribery charges for allegedly telling a woman that he could make her pending criminal case “go away” in exchange for sex.

In fairness to Mercado, that is something he actually might have been able to do because he wasn’t some random attorney looking to take on the woman’s case, but an assistant state attorney in Charlotte County. While he’s since moved on to set up his own criminal defense practice, investigators say that when he was still working for the government, Mercado abused his position to get access to the defendant in this case:

His arrest followed an investigation by the Florida Department of Law Enforcement, which alleged Mercado had sex with a defendant facing domestic battery charges.

Mercado was not assigned to the woman’s case, but accessed her records and gave her advice, according to the FDLE.

Some of you puritans out there will cluck your tongues over this fee arrangement, but when you think about it, Biglaw firms have been fucking their clients for years.

Sex in Exchange for Legal Services? Miami Lawyer Arrested on Bribery Charges [Daily Business Review]