Category: News Feeds

Derek Bluford, who was indicted by a federal grand jury in 2018 after his legal technology company shut down amid allegations of fraud, forgery and impersonating a lawyer, has resurfaced with a new self-published book in which he says he became an FBI informant assisting in a political corruption investigation into the former mayor of Sacramento, Calif., Kevin Johnson, who was also a former star with the NBA’s Phoenix Suns.

Between 2016 and 2018, I wrote a series of posts about Bluford, a one-time rising star on the legal tech start-up scene whose star fell after I reported in 2016 of his settlement of a lawsuit charging him with impersonating a lawyer, forging legal documents and fraudulently swindling two clients.

In fact, Bluford’s new book mentions that post, saying that he was about to sell his company to LegalZoom at a valuation of $10-15 million when the lawsuit and my report on it caused LegalZoom to back out of the deal. (LegalZoom had reached out to me in 2016 to deny that it was doing business with Bluford or had any partnership with him.)

When I first wrote about Bluford, he had been slated to be featured two weeks later at a Legaltech West Coast program on legal innovation. Just 28 years old at the time, he had achieved success and won accolades as an entrepreneur, first starting California Legal Pros, a company that marketed various legal services to both consumers and lawyers. then QuickLegal, a service that provided on-demand legal advice to consumers, and then QuickLegal Practice Management, a cloud practice management platform for lawyers.

Following my report, QuickLegal shut down, but then seemed to be reincarnated in another similar startup called LawTova. After I wrote about that company (here and here), it too shut down. I then wrote about yet another startup that had ties to Bluford and QuickLegal, which has also since shut down.

The 2018 indictment of Bluford was based on the same issues I’d written about, charging him with wire fraud and money laundering for allegedly falsely claiming to be an attorney and defrauding a couple of over $500,000. That case remains open in the U.S. District Court for the Eastern District of California, where a status conference is scheduled to be held on Oct. 29.

Bluford’s Book

Yesterday on Amazon, Bluford published a book, The Mighty Have Fallen, in which he says that he was a “confidential human source” for the FBI who worked under the code name “The Lobbyist” on several political corruption cases.

The initial investigation in which he was involved, Bluford writes, revolved around Johnson, the former NBA star who became mayor of Sacramento and also president of the U.S. Conference of Mayors, but whose tenure was marred by allegations of sexual abuse.

Bluford says Johnson became an investor in one of his companies after meeting him by chance in 2014 during lunch at an upscale Sacramento restaurant. That company had a product designed to help local and state governments enforce parking and code violations. Bluford alleges that Johnson began calling other mayors and offering them money to push for contracts with the company, which Bluford says would have enriched Johnson as a shareholder.

(When the company in which Johnson invested, then called Text to Ticket, launched, Bluford’s involvement in it appeared to have been hidden. But, as I wrote at the time, the company had “an uncanny number of connections to QuickLegal and Bluford.” Subsequently, Bluford’s attorney took issue with my drawing connections between Text to Ticket and either Bluford or QuickLegal. But in the book, Bluford explicitly describes Text to Ticket as his idea and a company in which he was directly involved.)

Bluford says that shortly after he was indicted, the FBI offered him a deal to cooperate as a witness against Johnson. Initially, Bluford claims in the book, they wanted his help in their investigation into sex trafficking allegations in Johnson, but that the investigation later pivoted “to pursue him for political corruption crimes” which also involved other elected officials and candidates for office.

The book, of which I have read only the first couple chapters, is Bluford’s story of what he says was his role in those investigations.

“This is a tale of crooked multimillion-dollar contracts, envelopes stuffed with cash, members of staff who will stop at nothing to make sure they remain loyal to their candidate, and developers, companies, lobbyists, and politicians who brazenly enrich themselves and those around them at the public’s expense.”

Here is the whole set of my prior posts about Bluford:

See these posts for more information:

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 Joseline Jean-Louis Hardrick back to our pages. Click here if you’d like to donate to MothersEsquire.

Do you often feel guilty, drained, conflicted, or like, no matter what you do, it’s never enough? You aren’t alone. One poll on WorkingMother.com discovered that 57 percent of women feel guilty every day!

The pandemic has changed how we live and work. And now, more than ever, you may be getting worried and guilty about everything! This article provides one simple trick to release all that guilt and achieve peace, positivity, and assertiveness.

It’s time to change the narrative, from guilt to gratitude. This shift will ultimately make you more fulfilled in the roles you play in your life, not just motherhood! It’s possible to utilize all your guilt and feel good about yourself and your efforts through gratitude. You can learn to appreciate yourself and identify the positives amid the pressures of family and work while getting back on track when you fall short of your commitments.

Do these thought patterns sound familiar?

• I’m so tired; I can’t [cook, clean, do laundry] today; I’m a horrible wife!
• I am so sorry that I cannot go to all of my child’s events or sports activities.
• I feel guilty for taking time to [rest, sleep, get my hair/nails done] since I have so much to do.
• I can’t hire a [maid, nanny, cook]; I’m supposed to be all of those things to my family.
• My husband has to pitch in and help me, and he [struggles, does not do it right, or is complaining] to the point that I may as well do it myself.

Well, it is time to turn those thoughts on their head! Shift your focus from the guilt and what is missing to what is present and helpful. For example, here are some alternatives to the thoughts stated previously:

• I am grateful that my value as a wife is not tied to how I look or what I do; I bring value in so many ways to my family and love them.
•  I love that I have friends and family who can attend my child’s events and cheer them on.
• Taking time to rest is powerful and fuels me to help myself and others.
• I am grateful I earn an income and can afford to hire a [cook, maid, nanny] to assist me in all the things I do for my family.
• I am grateful that I have a supportive spouse who chips in and does not require perfection.

Here are some other ways to reframe negative experiences:

• “I’m sorry my kids are making noise in the background” becomes “Thank you for understanding that working from home can get a little noisy.”
• “I am sorry I am late; things are so hectic” becomes “I appreciate your patience as I prepare for our meeting; we all can use grace during this season.”
• “I wish I could make it, I have too much going on” becomes “I am so grateful to have so many opportunities to share time and space with colleagues and friends; I’ll make it to the next one.”

Further, any sentence that starts with “I am sorry” can be replaced with “Thank you for your patience and understanding.” Any thought that suggests you are failing at something shifts to “I am learning how to do things in a way that works for me and my needs.”

And for those going through e-learning, especially with a little one, there are moments when you feel like you are failing miserably. In those moments, tell yourself that “I am grateful to have an option to continue my child’s education, even during a crisis.”  And, here’s a good reminder: “all learning does not take place in a book or a classroom.” Everything we are going through now is temporary, and we can look back at this time with guilt or choose gratitude for surviving it and choosing to thrive through it.

Sounds too simple to be true? Try it out, and see for yourself.

Many of our stressors originate in the mind; it is not the events happening around us but our reactions to them that make us experience stress. By shifting your reaction from guilt to gratitude, you shift your energy from negative to positive. And there are many parallels between law practice and a gratitude practice — they both require repetition, trial and error, and the intention to get better at it as you continue. Further, several studies have found that gratitude creates positive outcomes, particularly for mothers of young children and those with special needs.

As you grow into the “new normal”  created by COVID-19,  remember to acknowledge those things that are going well and release the guilt that may rear its ugly head. Kiss guilt goodbye, and say hello to gratitude.

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Joseline Jean-Louis Hardrick, Esq. is a professor at Western Michigan University- Thomas M. Cooley Law School’s Tampa Bay Campus, founder of Diversity Access Pipeline, Inc.’s Journey to Esquire® Programs,  a children’s book author, social entrepreneur, and a mommy lawyer. For more information, visit www.joselinehardrick.com. 

We hate him. We really, really hate him.

Reuters analyzed FEC disclosures to see whether lawyers were clicking “Donate” at ActBlue or WinRed. Unsurprisingly, the party that is currently burning down the Justice Department and smashing all political and professional norms is doing significantly worse with the counselor class.

Reuters reports that the Biden campaign raked in almost $29 million from lawyers from January 2019 through August of this year, compared to just $1.75 million for Trump. Those are just individual attorneys’ contributions to the campaigns directly, capped at $5,600 between the primary and general, and don’t include contributions to PACs or party committees.

Morgan & Morgan leads the pack with $369,127 for Biden during the period, followed by Covington & Burling at $240,564 and Sidley Austin at $230,686.

Attorneys at Fish & Richardson, Trump’s biggest supporters, could spare only $11,355 for the President, and they appear to have hedged their bets with equivalent donations to Biden as well. Even Attorney General Barr’s old partners at Kirkland & Ellis only kicked up $10,840 for his boss in the relevant period. Although, according to Open Secrets’ database, the running tally for all employees at the firm is currently at $364,283 for Biden, and $25,202 for Trump.

Worst of all, the lawyers who know Trump best — or at least the ones who take the most of his money — don’t like him either. During the 2020 campaign cycle, Jones Day was paid $11,806,685 by Republican candidates, committees, and PACs. The Trump campaign shelled out upwards of $4.5 million of that, with the RNC paying another $3.2 million. Nonetheless, lawyers at the firm sent only $50 dollars (no, we didn’t leave off a couple of zeroes) to the Trump campaign, and $90,000 to Biden.

Hey, isn’t that former White House Counsel Don McGahn’s firm with the 1,800:1 Biden-Trump donation ratio? Incidentally, none of that cash came from McGahn himself, whose only donations appear to be $2,800 to WinRed and $2,800 to Susan Collins. (His wife didn’t donate to the president either.)

Trump’s personal attorneys are only slightly less appalled at their most famous client — but only slightly. The ratio of donations from Kasowitz Benson Torres and Morgan, Lewis & Bockius is about 10:1 in favor of the former Vice President.

“It shouldn’t be news that rich, liberal lawyers in Biden’s pocket are desperately trying to make up for his lackluster candidacy or that every big law firm has lawyers on both sides of the political aisle,” Trump campaign spokeswoman Samantha Zager snarked to Reuters.

Which tells you exactly what she and her boss think of our community. And considering the publicly available information at the FEC, the feeling is apparently mutual.

Lawyers spurn Trump campaign in individual donations, including from Jones Day [Reuters]

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

(This is a public service announcement featuring some of America’s most well-known TV lawyers who hope to recruit actual lawyers to join We The Action’s Election 2020 Task Force, where they will play a critical role in ensuring that people are able to exercise their right to vote. We The Action is connecting those who join the Task Force with Democratic voting organizations to help staff remote voter hotlines, serve as poll workers and observers, and cure mail-in ballots. Click HERE to get involved today.)

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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.

The coronavirus crisis really threw the legal profession for a loop in 2020. Now that the new year is just around the corner, there finally seems to be a light at the end of the tunnel when it comes to the austerity measures that were instituted due COVID-19’s economic upheaval. Now, one of the wealthiest firms to cut salaries is doing a complete about face when it comes to compensation.

Since March, Reed Smith — which raked in $1,246,926,000 in 2019 gross revenue, making it 26th on the Am Law 100 ranking — has announced not one, not two, not three, but FOUR rounds of salary reductions for partners, associates, and staff. First, the firm announced that partner cash distributions would be slowed as a “precaution” to “brac[e] for the short-term and potential long-term economic impacts of COVID-19. A short time later, in mid April, the firm came for associate salaries, announcing 15 percent cuts that would last from May through the end of August. About two weeks later, the firm announced that partner bonuses were being deferred and split into separate payments (and the same would happen for staff discretionary bonuses). Then, on June 1, the firm announced that its salary cuts for associates would not only last through the end of the year, but they’d increase to 20 percent. On top of that, staff earning more than $100,000 would take a 10 percent salary hit while other professionals would see reduced workweeks, reduced salaries, and furloughs.

Back in August, Reed Smith walked back its salary cuts for some — but not all — those affected, as of September 1. On October 1, the firm further reduced those cuts for attorneys and eliminated them entirely for staff earning more than $100,000. Now, the firm has decided to do something that’s sure to make all of its associates, counsel, and partners as happy as can be.

Sandy Thomas, Reed Smith’s global managing partner, has just announced that all salaries at the firm will be fully restored as of November 1. Here’s a statement:

Throughout the pandemic, the firm has been dedicated to protecting the health and safety of our people and supporting our clients around the globe. Because of the incredibly hard work, shared sacrifice and commitment of our people, we are pleased to announce that we are fully restoring compensation to the 100% level for all of our lawyers and professional staff.

This is exciting news for everyone at the firm. “As we move into 2021, we will continue to be vigilant in protecting the health and safety of our people, conducting our business prudently and providing exemplary service to our clients,” Thomas said.

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

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

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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.

Ed. note: Litigation finance is transforming the fields of both law and finance. To help our readers gain a better understanding of what litigation finance entails, we’ve partnered with Lake Whillans to present an ongoing series detailing how litigation funding works, its pros and cons, and its past, present, and future.

Much of the discussion of litigation finance naturally focuses on the underwriting phase of the funding process.  We’ve written previously about the variety of flavors of litigation finance deals and the fact that it’s never too early or too late to seek funding.  We’ve also discussed the pricing that a claimholder should expect in negotiating a litigation funding agreement.

But what about when all the terms have been agreed and both claimholder and funder have signed the funding agreement?   What role does the funder play?  Who controls settlement?  What type of interaction should a claimholder expect to have with the funder on an ongoing basis?  And how do the mechanics of funding work?  How does the money flow both for covering litigation expenses and for dividing the proceeds from a successful claim?   Lake Whillans has seen many litigation funding investments through to their conclusion, and although each case has unique elements, there are some standard practices.

Control Over Settlement and Strategy 

Unless the funder has acquired the claim in its entirety, generally the funder has no right to control the litigation, and an experienced and reputable funder will not normally attempt to direct case strategy.   For example, the funder should generally not have the contractual right to dictate things like what motions to file or not file, arguments to make or not make, experts to retain or witnesses to call.  A good funder is in the business of making investments and not litigating cases, and will let the lawyers do the litigating.  A typical Lake Whillans funding agreement will disclaim all rights to direct or control the conduct of the litigation.  (Whether the funder’s non-binding input is requested is a matter of preference and is discussed below).

Most importantly, in a Lake Whillans transaction, the claimholder generally retains full freedom to decide whether to accept any settlement offer.  While most funders operate this way, some may nonetheless include punitive economic terms or “hammer terms” if settlements that are beneficial to the funder are rejected by the claimholder.  

Because settlement control will lie with the claimholder, it’s important to make sure funder and claimholder incentives are aligned throughout the litigation and especially with respect to settlement offers.  Funders seek to avoid the situation where the claimholder is incentivized to reject a fair settlement offer because the funder is the only one who will be paid from the settlement.  For example, Lake Whillans would be unlikely to fund a case if a reasonable settlement is only $5 million, and the claimholder is seeking an investment of $3-4 million.  In that scenario, a $5 million settlement would likely be almost entirely used to satisfy obligations to Lake Whillans and thus the claimholder would have no reason to accept that settlement, potentially taking unwarranted risk.  As part of the diligence process, Lake Whillans estimates and discusses with the claimholder what a reasonable settlement might be and only makes an investment if the economic terms of the deal allow the claimholder to share the benefit from such settlements.  

Communication With Claimholders

Claimholders and counsel often wonder (worry over) the role the funder will play once a case is funded.  While ongoing communication is to be expected, funders like Lake Whillans will not play an intrusive role.  At a minimum, the funding agreement will specify that the funder has a right to information about the progress of the case and to be informed of any major developments.  Such communication is generally protected from disclosure to adversaries: Communications with the funder are understood to be protected at a minimum by the work product privilege.  

Beyond the contractually required updates, the frequency of communication between funder and claimholder is driven largely by the preferences of the claimholder and counsel, the size and experience of the claimholder’s in-house legal team, the stage/activity level of the litigation or arbitration, and other idiosyncratic factors.   Claimholder and counsel often come to view the funder as a valuable sounding board, between its deep familiarity with the case, its focus on the big picture as opposed to the day-to-day battles of litigation, and its experience with similar situations in prior investments.   Lake Whillans has engaged in a range of communication styles across its investments — from formal and less periodic updates, to ad-hoc communications as needed, to scheduled phone calls (generally monthly).    It’s been our experience that the process of getting to a transaction often forms a mutually respectful relationship that naturally lends itself to continuing constructive and desired communication. 

Disbursing Funds

Once the funding agreement is in place, the funder is of course under an obligation to disburse funds according to the parties’ investment agreement.  Lake Whillans will at the outset establish a reserved facility, representing an amount set aside to cover the full amount of the funder’s commitment.  Some funders do not reserve the full amount of capital for the investment and, instead, rely on financial management to meet their investment commitments.  It is always worthwhile for claimholders to ask prospective funders how they ensure that the investment commitment will be available.  Funders typically make a series of payments over the course of the case, drawing down on the reserved facility, which payments are triggered by different events depending on the nature of the investment.

If the transaction involves an upfront payment (which can be all or part of a transaction), that payment will be made promptly after the transaction closes, usually within 10 business days. Upfront payments can include full or partial monetization of a claim paid to the claimholder or be used to pay counsel outstanding accrued legal costs. 

In a single-case investment that involves payments to the claimholder’s counsel at hourly rates and/or for expenses, the law firm will send its standard periodic invoices to the claimholder, which are either forwarded or copied to the funder.  The funder will pay those bills directly to the firm as they come due after being approved by the claimholder.  If the funder has transacted with a  law firm related to a portfolio of cases, payments will typically be made according to a specified schedule (including in some cases, all upfront), when the firm requests draws, or when certain milestones are reached.  

Distributing Proceeds 

If the case succeeds and proceeds from the successful claim are collected, the recovery is usually placed in escrow and distributed to the funder, counsel, and claimholder as specified in the  funding agreement.  The agreement will contain a  negotiated “waterfall” laying out the order of priority the recovery is to be paid to entitled parties. Typically, the funder recoups any capital it disbursed before any other party is paid and its profit either gets priority over the remaining stakeholders or, in some cases, shared pro rata with counsel (assuming that counsel has a contingent stake in the litigation) and/or the claimholder.  The claimholder takes any remainder. 

* * *

Ensuring a smooth interaction between funder, claimholder, and counsel begins with pre-investment due diligence.  A claimholder seeking funding should assess whether a potential funder has a track record of working effectively with claimholders and counsel.  Lake Whillans is happy to discuss its experiences in this regard and what you should expect given your particular circumstances.  The best way to determine if your company or firm could benefit from litigation finance is to contact us.

When I first heard that the Slate team of Josh Levin, Aaron Mak, and Jonathan L. Fischer cracked the redactions in the newly released 2016 deposition of Ghislaine Maxwell, I assumed it was some technical issue that allowed the seemingly redacted words to be cut and pasted into a word document unredacted, because, well, that’s happened before. Like a bunch of times — and those are just the famous cases. But no, there’s a new way they’ve completely screwed the pooch on this one.

If you’ll recall, Maxwell, a onetime associate of Jeffrey Epstein, is currently facing six federal charges, including enticing a minor to engage in illegal sex acts. Prior to the current criminal case, Maxwell gave a deposition in a defamation suit brought by Virginia Roberts Giuffre, who alleges sexual abuse at the hands of Epstein. The Miami Herald sued for the depo (and other documents) to be released, which was done after “days of wrangling over redactions.” Turns out those negotiations may have been in vain.

It all boils down to the depo index. As Slate notes, “It turns out, though, that those redactions are possible to crack. That’s because the deposition—which you can read in full here—includes a complete alphabetized index of the redacted and unredacted words that appear in the document.” So, nestled between clients and clock is another “cl” word….

Do you think it’s Clinton? I think it’s Clinton.

Oh, look, an instance of the word on page 135 that was (likely inadvertently) left unredacted reveals, it is, in fact, Clinton.

They were also able to sniff out the the Alan Dershowitz redactions:

Consider the example of Alan Dershowitz. The index indicated that there’s a redacted word that comes after airport and before alcohol.

There’s also a redacted word that comes after depth and before describe.

The A-word and the D-word, the index reports, appear consecutively on pages 211, 299, 368, and 407. Based on context, we can easily deduce that those two words are Alan and Dershowitz.

They also were able to figure out the below referenced Prince Andrew/Andrew’s:

This one was cracked because of a lawyer’s address. That’s right, because the address for Farmer Jaffee is on N. Andrews Avenue, which was left unredacted, they were able to piece it together.

So far, using these methods, Slate has determined the redactions for the following:

• Doug Band (page 137)

• Nadia Marcinko, also known as Nadia Marcinkova (pages 40-47, 87, 255, 396)

• Marvin Minsky (page 145)

• Kevin Spacey (page 266)

• Leslie Wexner (pages 117, 314, 380, 381, 403, 404)

So let this be a warning to all lawyers out there: sometime the best negotiated plans fall apart with just a bit of critical thinking.

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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).

The enduring power of Donald Trump’s “drain the swamp” mantra is the visceral appeal it has to the vast majority of Americans who see the government as a hodge-podge of competing elite interests that either actively sell out the average person or throw those interests into a bureaucratic hole of persistent inaction. That Trump’s administration embraced these forces with a ferocity unlike any other doesn’t diminish the fact that it’s a solid tagline.

Joe Biden, on the other hand, comes from a brand of Democratic Party politics that affirmatively believes that the Washington model is a good thing. Where most people see detached elites, he sees “experts.” Where most people see industry lobbyists, he sees a neo-Madisonian reflection of the will of the public. And where most people see inaction, he sees “collaboration!” A commitment to institutionally vetted expertise and bland bureaucracy is, perhaps, a welcome change from hyperactive conspiracy mongering, but it doesn’t exactly scratch the itch that’s brought America to this crossroads.

Unfortunately, with the Republicans lighting their own norms aflame to ram an underqualified ideologue onto the bench and liberals demanding a commitment to undo this through expanding the size of the Supreme Court, Biden has been touched by the more mundane angels of his nature:

“If elected, what I will do is I’ll put together a national commission of — bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative. And I will ask them to over 180 days come back to me with recommendations as to how to reform the court system because it’s getting out of whack — the way in which it’s being handled and it’s not about court packing.

You know what we don’t actually need? A commission.

Of all the hackneyed, corporate nonsense out there, the “referral to committee” is among the most derided. It’s so universally and durably hated they made fun of it in a Star Wars movie and that was a long time ago. I mean 1980… not the setting of the film.

There’s a lot of ink spilled on this question already… go make a decision about it! Biden got a lot of flack for not immediately committing to court expansion one way or the other, but his eventual articulation of “well, it depends on what Mitch does with this nomination” was actually pretty good. It established that Biden prefers to keep the current rules but if he has to make changes that’s on Trump and McConnell. There’s a clearly delineated threat: accept a 5-4 conservative majority or be handed a 7-6 liberal majority. And now that’s all getting thrown out in favor of a promise to follow a “commission.”

People don’t like commissions. They convey the opposite of conviction. Despite what politicians may think, they tell the country just how little you prioritize an issue by signaling that it’s not important enough for you to have bothered to worry about before. With COVID as a backdrop, Democrats want to sell that they listen to expertise, but you don’t need an artificially bipartisan commission for that, you just need to read a Laurence Tribe book and say, “This guy convinced me.”

It’s just such bad politics. To the extent the country has undecided voters anymore they care more about the fact that a candidate has a stand than what that stand is. Because if someone is undecided at this point, they pretty clearly don’t pay attention to policy particulars. If America votes for Joe Biden they don’t want to hear what Leonard Leo thinks about court reform, they’re saying they want to hear what Joe Biden thinks about court reform, so just go ahead and do that and dispense with the fantastical bipartisan charade.

Because people don’t actually like bipartisanship as much as Democrats like to think. Republicans hate it. Democrats hate it. Everyone else doesn’t really care. You want a bipartisan discussion of court reform? Put a bill on the floor and vote on it! Anything else is the sort of empty academic masturbation that only interests Jeffrey Toobin figuratively and literally.

“There’s a number of alternatives that are — go well beyond packing … The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want. Presidents come and go. Supreme Court justices stay for generations.”

Maybe the crux of the problem is that last sentence.

I’ve been outspoken in preferring a term limits option for court reform. The tit-for-tat nature of responding to de facto court packing with de jure court packing just locks us in the Treehouse of Horror scenario of constant retaliatory expansion until we make “a board with a nail so big it will destroy them all!” Something that sets a new, durable standard that returns the Court to its proper role as a lagging reflection of national elections. It’s also in the best interest of basic democracy to put an end to the idea that the country’s future turns on a life-tenured aristocracy. Court expansion still has a role to play in convincing the Court that its institutional credibility hinges upon accepting reform or becoming an expanded farce, but it’s the backup strategy, not the front line response.

Maybe someone on the commission can forward it before it gets buried under a sea of empty hypothetical alternatives and we’re right back where we started.

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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.

Like most lawyers, you’ve likely worked remotely on more than one occasion since March, when quarantines were put in place due to COVID-19. Since then, lawyers across the country continue to work remotely from different locations at least part-time, while others continue working remotely full-time. Of course, when lawyers work remotely, ethical and security issues relating to how confidential data is handled and shared may be triggered. This is especially so now that the ethical standards regarding electronic communication are changing.

It used to be that unencrypted email was sufficient when communicating with clients electronically, but in recent years, the tide has begun to turn. Technology has improved significantly, and more secure electronic communication methods have emerged, rendering unencrypted email insufficient for certain types of client communication, as the ABA concluded 2017 in Formal Opinion 477R.

In this opinion, the Ethics Committee determined that unencrypted email may not always be sufficient for client communication. Instead the Committee advised that lawyers need to assess the sensitivity of the information that they’re sharing on a case-by-case basis, and in many cases, may want to consider using more secure, encrypted methods of communicating and collaborating with clients, including a “secure internet portal.”

In April of this year, the Pennsylvania Bar Association followed suit when it issued a much-needed opinion addressing the ethics of practicing law virtually. In Formal Opinion 2020-300, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility provided guidance on how lawyers and their staffs can ethically provide legal services while working remotely.

Notably, the committee adopted the ABA’s rationale regarding secure communication and concluded that because of improved technology, unencrypted email is insufficient for particularly sensitive information:

(L)awyers must exercise reasonable efforts when using technology in communicating about client matters … (and use) a fact-specific approach to business security obligations that requires a ‘process’ to assess risks, identify and implement appropriate security measures responsive to those risks, verify that they are effectively implemented, and ensure that they are continually updated in response to new developments…A fact-based analysis means that particularly strong protective measures, like encryption, are warranted in some circumstances.

I recently discovered that the Michigan State Bar Association  joined the fray earlier this year when it issued Ethics Opinion RI-381. In this opinion, the committee adopted the analysis set forth in ABA Formal Opinion 477R and concluded that because of improved technology, unencrypted email is insufficient for discussing particularly sensitive information, and in those cases more secure communication methods such as encrypted email or secure online client portals will be required:

“What constitutes ‘reasonable measures’ in fulfilling the duty to exercise reasonable care regarding client (electronically stored information) depends on the circumstances, including the degree of sensitivity of the information to the client, potential threats, the risk of harm to the client in the event of unauthorized disclosure … and the availability of protective technology … . As noted in ABA Formal Opinion 477R … ‘the use of unencrypted routine email generally remains an acceptable method of lawyer-client communication,’ but ‘particularly strong protective measures, like encryption, are warranted in some circumstances.’”

Since its founder’s unseemly tie to the late pedophile Jeffrey Epstein became public, Apollo Global Management’s response has been clear, unequivocal and unchanging: Nothing to do with us. Whatever Leon Black decided to do with several tens of millions of his own dollars vis-à-vis a noted sex criminal, Epstein never provided any of his mysterious and amorphous professional services to the private equity giant, and it never provided him with a nickel, and anyway no one really cares. It even held an investigation into the matter to put things to well and truly to bed. And yet: