Category: News Feeds

I briefly closed my eyes. In that split second, I considered my comfortable home life. My lucrative law practice. I imagined [my daughter] Tempest growing up and pursuing her dreams. I remembered that the odds were stacked against her. Her life would be full of potholes. She could be suspended from school for being disruptive. The school might even call the cops on her for speaking out of turn. That means her life could be sent into a tailspin—forced interaction with the criminal system for the rest of her life if she didn’t color within her own lines, quiet and obedient. Do I really want to be teaching my daughter to be silent and stay hidden? Yes. For her safety. No. Because we have to speak up. But what is life if you’re just surviving?

—An excerpt from the short story ‘Not Built for Us’ by Yvette Butler, winner of the ABA Journal’s seventh annual Ross Writing Contest for Legal Short Fiction.

If there are rakes left to step on in Kentucky, the principal at Whitefield Academy will find them. Dr. Bruce Jacobson, head of the private Christian school in Louisville, found himself at the center of a firestorm three weeks ago when he expelled a student because her mother posted a photo on Facebook of her daughter celebrating her 15th birthday with a rainbow cake.

And she was wearing a rainbow sweater!

“The WA Administration has been made aware of a recent picture, posted on social media, which demonstrates a posture of morality and cultural acceptance contrary to that of Whitefield Academy’s beliefs,” Jacobson wrote in an email on January 6, the day before the child was scheduled to come back from Christmas vacation. “We made it clear that any further promotion, celebration or any other action and attitudes counter to Whitefield’s philosophy will not be tolerated. As a result, we regret to inform you that [the child] is being dismissed from the school, effective immediately.”

But Dr. Jacobson couldn’t leave it there. After the child’s mother Kimberly Alford went to the media, Jacobson released confidential information about the child’s disciplinary record and her sexual orientation to the press.

“In fact, she has unfortunately violated our student code of conduct numerous times over the past two years,” the school told the Washington Post in an email. “In the fall, we met with the student to give her a final chance to begin to adhere to our code of conduct. Unfortunately, she did not live up to the agreement, and therefore, has been expelled.”

Then Rod Dreher, senior editor at the American Conservative, did some digging into the sexual-identity of a 15-year-old girl and decided to publish it in an article entitled “Rainbow Cake Girl: The True Story.” Which is in itself a statement about American conservatism in 2020.

My understanding is that [the child] had a long, specific list of repeated infractions — bullying, disrespecting teachers, vaping in school (as Alford acknowledges), and so forth. Part of what she has allegedly done is promoting LGBT consciousness in the school, including aggression on that front. I’m trying to be delicate here, but I can tell you that she has transgressed against other students on this front, to promote bisexuality. For example, she allegedly drew rainbows and wrote slogans like “bi pride” on other kids’ papers, and gave at least two different girls the impression that she was sexually harassing them.

He then posted several images from the child’s private Instagram account. Because Rod Dreher is a creep.

He is also a named defendant in the lawsuit filed by the child’s parents yesterday in Jefferson County Circuit Court. They allege breach of contract, since the school released the child’s personal records and failed to follow its own escalating disciplinary policy, which allows for “an opportunity for mercy and grace through contrition,” rather than summary expulsion because the some nosy assh*le screengrabs a photo which confirms the school’s suspicion that the child is gay.

The suit alleges defamation, intentional infliction of emotional distress, and invasion of privacy by the school and American Conservative, as well as by Jacobson and Dreher personally. It further alleges that the child’s disciplinary record consists of cutting lunch once and getting caught with a Juul, after which she was referred to the school counselor who treated the child’s nicotine habit with a book entitled “Gay Girl, Good God: The Story of Who I Was, And Who God Has Always Been.” Which must have been very helpful.

The child’s parents are seeking a jury trial. And while private schools have wide latitude to discriminate against gay kids and defamation is difficult to prove, outing a 15-year-old girl in the national media might not endear the defendants to a jury in liberal Louisville.

It’s gonna be ugly.

Alford, et al. v. Whitefield Academy [via WRDB]
Rainbow Cake Girl: The True Story [American Conservative]
Christian school expels teen after she posed with rainbow birthday cake, mother says [WaPo]

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

LinkedIn, Facebook, text messages, emails, smartphones, laptops and more, have made attorneys more accessible than ever. For recruiters, easy access facilitates quicker communication. For law firms, all these innovations are sources of potential data leaks.

Thirty years ago, confidential files were physical, and you would have to break into a secure site to steal its contents. Today, most confidential information is stored electronically and many firms have adopted cloak-and-dagger protocols to monitor employee communication, whereabouts, and behavior to prevent data leaks by identifying risky or clandestine behavior. Reportedly, 80% of Am Law 100 firms have experienced a data breach. These breaches span from stolen phones to phishing scams to firewalls breaches.

Law firms are popular targets for data thieves, as a secondary source of information to gather confidential documents on their major corporate clients. Law firms are often slower to adapt to modern technology. In the past, firms have modest security protocols compared to corporations and thus offer an easier avenue of access. The growth of data privacy practices indicates that law firms are starting to take the risks more seriously.

To combat these breaches, law firms have several contingencies and programs in place. Among the oldest and most widely used is email monitoring. Nothing that you type from your work email is truly 100% confidential. Law firms can access your emails at any time. So should you be wary of your firm discovering your emailed plans for making a lateral move?

According to a former high-level IT employee at two Am Law 200 firms, the answer is, not really. According to them, email inspection is not passive. To review an attorney’s emails, the firm would have to go through HR and would only do so when there was ample evidence of a crime or wrongdoing.

Does this mean that your inbox is 100% completely safe from prying eyes? In short, no. The former employee mused that a firm that was hemorrhaging laterals and was in danger of collapsing might forego their established policy to try to stem the flow of lateral movement. Other instances that have upended standard protocol are internal leaks — such as memo leaks to Above The Law — in which case the IT department would sift through all employees’ emails to find the culprit(s). Every printer also embeds a hidden tracking code onto the pages you are printing, making any publicly shared printout, possibly identifiable.

It is important to note that these policies vary by firm. Some have more laissez-faire policies while others have adopted more totalitarian measures.

Additionally, the proliferation of employee monitoring software has made it easier for firms to identify suspicious activity. The caveat here is the same tools that can detect potential data security threats, can also be used to monitor an employee’s likelihood of leaving. New employee monitoring tools can monitor everything you do on your computer. If you’re not responding to your coworker’s IM’s, or are taking longer than usual, this (in tandem with other key indicators) may tip them off that you’re looking to move. Other indicators can include things like regularly updating your LinkedIn profile.

There are many missteps that attorneys make that tips off their firm to an impending lateral move. The most common mistake attorneys make has nothing to do with emailing or web browsing. According to the former IT employee, many firms use programs to monitor several things including library checkouts.

The most telling pattern of behavior is when attorneys check out an unusually large amount of documents (usually in excess of 50) in one day that were marked as read-only, with no edits. In this case, the firm is painfully aware that the attorney is copying their library in preparation for a lateral move.

While firms have all these tools available for monitoring and detection, if you feel apprehensive about conducting a lateral search while at work, your fears are exaggerated. Not all law firm policies are made equal, but most are used to address suspicious activity, not lateral defections. Firms very rarely retaliate against an impending lateral move. As attorney mobility increases year after year and the idea of the lifer attorney is largely lost, firms see lateral attrition as a cost of doing business rather than a personal affront.

In general, use common sense when conducting a lateral search. It’s never good to tip your hand before you play your cards. Use personal accounts and devices to answer emails and calls when possible, but an initial email back to a recruiter providing your personal email is not likely to be flagged as suspicious. That being said, the safest way to start a conversation is to go old school and use your phone.

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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.

Donald Trump and Elon Musk would not seem to have a great deal in common. Musk is, after all, a self-made immigrant who believes in climate change and is trying to wean the U.S. and world off of the fossil fuels that are quite literally at the heart of Trump’s politics and policy. But for all that, in many ways, they really aren’t so different. They’re both megalomaniacal Twitter addicts prone to ad hominem attacks, weakness at math and contempt for the law. They both went to Wharton and are thus super-geniuses. Oh, and they kind of need each other: Trump viscerally requires the kind of stock market boost that Tesla provides, and Tesla probably needs a good deal of federal help to keep that stock rising and driving David Einhorn insane. Oh, and neither is particularly good with words, as the president amply demonstrated in a long soliloquy to (appropriately) Joe Kernan in Davos.

The beginning of a new year is the perfect time for busy lawyers to take stock of last year’s achievements and to establish plans for being SMART about business development in the coming months. To maximize your business development time, my question to you is: are you being SMART about it? SMART is an acronym that stands for Specific, Measurable, Achievable, Relevant, Time Sensitive. A key benefit to the SMART framework is that you are concentrating time on the most essential areas of your business development activities. SMART provides you with focus, so you can actually achieve your goals.  

Let’s briefly review each area of the SMART framework:

Specific – Being specific means that the goal is clear on what exactly the action needs to be. Who do you need to include? 

Measurable – Can you quantify the goal? 

Achievable – Can you accomplish this goal? Is it attainable?

Relevant – Does the goal align with what you need to do right now? Why is this goal important to your work and your practice?

Time Sensitive – What can you do today? In a week? In a month? In 3 months?

For example, you might commit to raising your profile and building more relationships this year by focusing on industry conferences and associations (e.g., See my ATL article Essentials For Maximizing Any Conference). Use SMART to make that goal more meaningful to you by adding more specific and concrete objectives that foster accountability:

“In the next 90 days, I will identify conferences that bring together in-house counsel in the financial services industry. After identifying potential conferences, I will work with my marketing and business development team to register for at least one relevant conference.  After receiving the attendee list, I will reach out to at least 5 current or prospective clients in advance of the conference.” 

After drafting the goal, set up 15-30 minutes in the next 90 days to review your goal and see what progress you have made. If you achieved that SMART goal, it is a great time to set up another. 

In the beginning, I would recommend using one or two SMART goals to get started. After that you can develop as many as you feel are achievable.

So go ahead and be SMART this year! Reach your goals and set new ones. Having problems getting started? Feel free to drop me a line at my email below.

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Jason Levin founded Ready, Set, Launch, LLC®, www.readysetlaunch.net, after a career in brand management at Unilever, consulting at Accenture, and employer branding sales at Vault.com.  Business development, personal brand and outplacement coaching are his passions, and Jason partners with lawyers and law firms to further engage and develop attorneys through training and one-on-one coaching.  Jason works with his clients to develop a business plan, land that next client, elevate their personal brand, make a career change, or transition into retirement. Jason enjoys speaking on and moderating panels and presenting career and business development seminars and webinars at staff retreats, conferences and training sessions.  Jason is “an attorney by marriage.” You can email him at jason@readysetlaunch.net and follow him on twitter @jasoncareers.  

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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. 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. 

Well here’s some news that’ll actually make you feel good — the top spot on the mastheads at the best law reviews in the country all belong to women. For the first time ever, the law reviews at the top 16 law schools — as defined by U.S. News & World Report — have all elected women to lead the publications.

This good news is a clear break from what has historically been true. As reported by Law.com, it wasn’t that long ago, 2012, when studies decried the law of women in exactly these kinds of leaderships roles.

That’s a significant shift from 2012, when a study by the nonprofit group Ms. JD found that women comprised just 29% of top editors at the flagship journals housed at the top 50 law schools. Women made up 43% of all law review editors in 2012 and 45% of all law review members.

As Above the Law readers are well aware, these editorial positions at top law schools are incredibly competitive. It’s great to see that not only are women going to law schools at record rates, they’re also excelling once they’re there:

“It speaks well to the progress that many law schools have made toward cultivating a more hospitable environment for women, people of color, and first-generation law students,” said Melissa Murray, a professor at New York University School of Law. “But credit should not go to law schools alone. The law reviews deserve credit as well.”

Congratulations to these outstanding women.

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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).

You’re not supposed to stop getting better, so make sure you are always getting better (though be careful what that means). And if you actually think you’re done, it’s time to get a new job.

I don’t think we ever used the term to described ourselves when I was growing up, but after I was somehow let in to what my third son would call a “fancy” college, I realized that where I came from would be considered a ghetto. Yes, it had its fair share of crime (I grew up in New York City in the ’70s and ’80s), but, more, it was a restricted and, in many ways, small place — restricted by ethnicity, by experience, and by worldview. As an example, when I left it to go to that “fancy” college I met, for the first time, a white Protestant (where I came from just about everybody was Catholic or Jewish). And that’s when I was exposed to the notion of being born again.

In my naive (and, I suppose, ghetto) way, I interpreted being born again to just being done with your religion: accept this, and you’re over the finish line, and all set. I know it’s not that simple. But, more than that, I rebelled at my limited understanding of the notion even then. How can you be all done?

Well, we can’t be, or, at least, I think we shouldn’t be, and that applies not just to faith but to profession. If you’re blessed enough like me and my colleagues to be a lawyer in America and believe it’s the right thing for you, you can never be done. This isn’t a sprint where we try to get over that finish line as I imagined it in college. The marathon metaphor comes to mind, but a career in the law is the New York City marathon: through different neighborhoods, up and down, over different terrain, crossing bridges along the way, and at times more than a bit odd.

What exactly does that mean for how we work and live and grow as lawyers? Certainly it means not embracing this extreme niche notion of being a professional, being the person who can handle some arcane legal problem and, perhaps, only that arcane problem (which, as a practical matter, worked out, for example, extremely poorly for those hundreds of well-paid lawyers a decade ago who handled only mortgage-backed securities work).

We need to keep expanding and pushing: handle new work. Work with new people. Try to get new kinds of clients. Read new articles. If you’re a trial lawyer like me: try cases in new courts or arbitral bodies. Keep getting better, but the real way of getting better — not just, or not even, more money, or more “prestigious” work, or more awards (I still think the term “Super Lawyer” sounds like it’s from a comic book). Keep developing as a work in progress as a lawyer.

But if that stresses you out — that you’re never going to quite know everything; you’re never going to be, or, at least, never should be comfortable; you’re always going to find yourself in a situation where, at first, you don’t have a solution — this simply may not be the job for you. I’m not being negative, but I am being serious. Gaggles of people go to law school for all kinds of bad reasons and then manage to become admitted lawyers. It doesn’t mean they all should be lawyers. And if the idea of constant growth stresses you out, then get out of this profession as soon as you can.

However, for those of us that don’t have much choice but to be lawyers, we have to be a bit impatient with ourselves. We should never be satisfied. We have to always push ourselves. We have to keep getting better at what we do and keeping helping our clients to win in the process.

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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.

Sauntore Thomas sued his employer for racial discrimination and secured a confidential settlement. When he tried to cash his settlement at TCF bank, they called the cops on him.

Despite having an account at the bank for almost two years, the bank thought Thomas’s settlement funds were fraudulent, citing a “VOID” watermark on the checks that suspiciously wasn’t an issue when he walked over to a Chase bank and opened a new account and cashed the check on the spot. But even if the check aroused suspicion for some understandable reason — which there’s not a great reason to concede — immediately calling the cops evinces a hair-trigger unwillingness to believe and willingness to raise the stakes up to 11 for a black patron.

“Obviously, assumptions were made the minute he walked in based on his race. It’s unbelievable that this guy got done with a race discrimination case and he’s not allowed to deposit the checks based on his case? It’s absolutely outrageous,” said [his attorney Deborah] Gordon, stressing all of this could have been avoided.

“They could have just called the bank that issued the checks, and they apparently didn’t do anything because it would have all been verified immediately.”

For its part, TCF points out that the teller who alerted the police is also black, which isn’t really a defense because acting on racial prejudices doesn’t actually require being white. Still, TCF says Thomas trying to cash checks struck them as a “highly, highly unusual request.”

People shouldn’t have to avoid checks just to steer clear of racial discrimination, but why wasn’t this just wired to his account? If the settlement came directly from the defendant as in this case where he received three checks from his employer it’s a simple enough transaction. Even if the money had first been sent to Thomas’s attorney, it could have then been wired to him from the trust account. If there’s any commingling concern either put in the retainer agreement that the client will be responsible for the $25 transaction fee or just reimburse him on the back end.

Some social media observers cite the warm feeling of getting a check with a lot of zeroes, but it’s the 21st century. This is the age of direct deposit. Wiring money isn’t a perk of the rich and famous anymore.

Gordon filed a lawsuit on Thomas’s behalf against TCF on Wednesday. Assuming this settles, maybe go for the wire this time.

Detroit man settles race discrimination lawsuit, then bank won’t cash his check [Detroit Free Press]

On Monday, Varun Mehta took over as CEO of Factor, an Axiom spinoff previously known as Axiom Managed Solutions. Mehta and Factor aim to take a bite out of the segment of the legal market that has previously been off-limits to anyone except Biglaw attorneys: challenging, sophisticated contract negotiations and compliance.

If Axiom’s history is any indicator, Factor is going to be a force in the industry. Axiom manages over $1 billion in active contracts and has over 2,000 legal professionals working under its banner.

The days of Biglaw lawyers ignoring alternative legal service providers are coming to an end. To find out what it means, Mehta spent part of one of his first days on the job talking with me about the legal industry and what’s ahead.

Why You Never Sell Legal Tech To Lawyers

Like so many of the movers and shakers in the legal tech space, Mehta is not a lawyer. He went to school for biomedical engineering but found himself on the founding team of Clutch Group, a legal analytics and compliance company. After spending time there as EVP and CRO, he ran Clutch for a year following its merger into Morae Global in 2017.

After exiting Morae in 2018, Mehta said he took some time off to evaluate the legal landscape and consult with tech incubators interested in the legal space. His advice was highly sought after. “Everyone knows legal is hot, but there’s not enough information out there about it,” he explained.

The conclusion Mehta eventually reached was counterintuitive: if you want to break into legal tech, you need to stop selling to lawyers. Unlike the corporate world, which has defined procurement procedures and obvious entry points for salespeople, Mehta found law firms have no internal drive to onboard new tech and no clear place for developers to sell. As a result, law firms remain permanently behind the tech curve, and even the best technologies marketed to law firms can wither and die. “It’s not the best tech that wins, it’s the technology that finds users and empowers them, helping them become owners and experts.”

Enter Factor, which tapped Mehta to lead its ambitious expansion efforts. Mehta said the opportunity was a perfect match for his views on the industry and his goals as a leader. Factor wasn’t building a product to sell to lawyers; it was building a platform to sell to clients, to eat the lawyers’ lunch in a way no other company was daring to try. Factor was “one of the few companies working from this premise of complex legal work and scale.”

JDs Need Not Apply

Factor’s secret sauce is leveraging a few attorneys with expansive nonattorney support. Factor’s in-house lawyers oversee large teams of nonattorneys specially trained in contract management and compliance issues. The goal seems to be to ethically entrust as much work to those nonattorneys as possible, bringing the cost of even highly complex transactions down to a minimum.

A short time ago this sort of thinking would have been anathema to in-house lawyers, but the pendulum is swinging steadily away from the traditional monopoly of the JDs and toward alternative legal service providers like Factor and other cost-saving approaches. Call it a drive for increased access to the legal system, call it a grab for cash, the legal and business worlds are getting more comfortable with nonlawyers handling issues traditionally reserved for attorneys, and businesses like Factor are taking advantage of the change in the public’s temperature.

Mehta doesn’t see the role of attorneys going away. In addition to the lawyers overseeing Factor’s work, Mehta believes there will always be a place in the legal market for “the artisans, the Michelin Star Chefs” who do truly unique work at the highest level. There will always be lawyers needed to figure out how a company interfaces with the world at large, or a new regulatory regime, or how it navigates a highly complex strategic decision.

That’s a small part of a company’s overall legal spend, however. In Mehta’s vision, it’s when those bespoke decisions need to be rolled out at scale that companies like Factor can shine. A lawyer can decide what language to include in a company’s new vendor agreement; Factor can manage the thousands of agreements that ultimately get signed. Mehta wants to build Factor to the size of an Am Law 50 firm, but with drastically higher capacity and less overhead. At 500 legal professionals currently, most of whom are not JDs, they’re off to an impressive start.

Will Firms Strike Back?

Factor is biting off a lot, but those of us in Biglaw would be foolish if we didn’t take note. If Factor can competently figure out how to offer our traditional complex services without the overhead of paying salaries on full-blown JDs, they’re going to have a price advantage we can’t beat. Today, Factor curates other company’s products for its customers. If Mehta and its leaders can also bring in a cutting-edge business tech sheen, one starts to wonder what lawyers can offer besides pointing to the diploma on the wall.

Make no mistake: a new front has opened up in the war between alternative legal service providers and traditional law firms. Even if Factor stopped growing today, which is unlikely, it’s identified a market opening that others will want to attack. The upper tiers of the transactional legal world are officially up for grabs. As litigation gets more expensive and private arbitration more efficient, it’s not hard to imagine the complex litigation world might also start to feel the heat of nonattorney competition as well. The ALSPs have money, business savvy, and momentum. No one’s book remains safe.

All is of course not lost. Firms could choose to strike back by expanding their own nonattorney staffs and trying to offer similar cost and efficiency savings. Firms could also choose to slim down, consolidate, or otherwise brace themselves for a long pricing battle with the ALSPs, one that will only get longer if trends toward nonattorney ownership and fee-splitting continue to pick up speed.

Whatever firms do, simply sitting pretty is no longer an option. Varun Mehta and Factor are making sure of that.

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James Goodnow is an attorney, commentator, and Above the Law columnist. He is a graduate of Harvard Law School and is the managing partner of NLJ 250 firm Fennemore Craig. He is the co-author of Motivating Millennials, which hit number one on Amazon in the business management new release category. As a practitioner, he and his colleagues created a tech-based plaintiffs’ practice and business model. You can connect with James on Twitter (@JamesGoodnow) or by emailing him at James@JamesGoodnow.com.