Category: News Feeds

While you might have thought lawyers were always high-priced mercenaries, the cost of legal advice was historically modest. What Supreme Court opinion blew the lid off lawyer fees, ushering in dominance of the billable hour?

Hint: Prior to this 1975 opinion, firms had to contend with state regulations capping fees and the push for a billable hour as an academic concept had only achieved traction within the prior 15-20 years.

See the answer on the next page.

I don’t know what you’re doing with whatever free time you have while being at home. Some states have loosened restrictions, some have adopted some loosening. California is very slowly loosening some restrictions, with some counties letting go of all restrictions due to their rural nature (the state is not all SF and LA). What have I been doing? I’m watching a bunch of CLE programs, offered by law firms and CLE providers either at little or no cost. Free is always good, and even though I just reported my CLE hours in January, there’s nothing wrong with getting started on the next tranche of CLE requirements.

The courses I’ve watched have been varied, all with the consistent thread of the COVID-19 impact on the law, law practice, and society in general. However, what has been different is that in at least two of the courses, they have concluded with pleas for civility (say what?).

I was surprised, as it was like actors breaking the fourth wall. The pleas are not something I’ve heard in CLE courses before. They are earnest pleas by two longtime practitioners (one a former judge) who understand well the “ants in the pants” reaction to either restart or start civil matters, but there will be the need to chill, most likely for an indefinite period of time.

When the courthouse doors are unlocked, and there will be different timeframes probably by state and even by county and perhaps by districts within counties, my nightmare, which I am sure is shared by others, is that the scene will be similar to the running of the bulls in Pamplona, Spain. That annual event, originally scheduled for this July, has been canceled. No one wants to get trampled to death in the race to the courthouse steps.

A stampede by lawyers to file complaints (what about e-filing?), defense lawyers to file motions for summary judgment, and both sides to file contentious discovery dispute motions would not be pretty.

We need to simmer down. We know that civil cases will be at the bottom of the pile, at least for the foreseeable future. We know that criminal, juvenile, and certain other kinds of cases always take priority, as well they should. They always have and they always will. We know that judges will be even more stressed than they already are, giving already bulging dockets — and now more being piled on. Frayed judicial tempers may be more on display than ever before. No one has more than 24 hours in one day.

One retired judge mentioned that her former court is training civil judges to do criminal work. Whether they signed up for that or not is of no matter; that’s where attention will be paid for some time to come.

The whole concept of “in your face” between attorneys is, I hope, a thing of the past. Between face masks and required social distancing, perhaps the pettiness and downright unpleasant behavior exhibited by some attorneys will be extinct. Have you ever tried hollering into a face mask? The hot air expended would probably not be healthy. Have you ever yelled at someone six feet away? How can you be sure that the object of your wrath can even hear you at that distance?

Add to all this upheaval in the courts is what’s happening in Biglaw firms. Yes, I know most lawyers don’t practice in that environment, and sympathy for those in Biglaw may well be in short supply right now. However, especially for the newbies, who had expected upward trajectories in their careers, what has happened recently is definitely a shock to their systems and to the profession as a whole.

For those of us with still some memory, lots of kids (and I say “kids,” because I mean that literally) went to law school in the mid-oughts, and graduated into what had been, up to that point, the worst economy since the Great Depression. It was horrible for these newbie graduates, trying to find jobs, any jobs, even of the nonlawyer variety. Some of them have never had the careers, let alone the opportunities, that they thought they would.

And what happens to efforts, some better than others, to diversify the face of the profession? Some firms have been very earnest in their efforts, some more successful than others, but still a long way to go. What happens now? Rereading this post about the pandemic’s effect on law students is a sobering reminder that today’s law students have already been through tough times, seeing their family members lose livelihoods and homes in the Great Recession. I used to think that the Great Recession should have been called a depression, but what is happening today puts 2008 in the dumper.

I think the profession will eventually come out of this, chastened by our experiences. It’s going to be all about “doing more with less.” It will be on a strict diet, shedding overhead, unnecessary expenses (bye-bye closing dinners) and other things that used to compose a “good life” at Biglaw. Those who are in solos and small firms are used to belt-tightening whenever the need has arisen.

To those who read ATL and are considering law school to ride out the pandemic wave, please read Jordan Rothman’s post and take it to heart. Many lawyers went to law school during the Great Recession because they didn’t know what else to do and have lived to regret their career choices. The job market for lawyers, as bad as it was then, may well be worse in three or four years, given the quantum leaps in technology. It’s not a pretty picture but it may well be the new reality. What I do know is that pleas for civility, while nothing new, take on an even more urgent tone now.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

COVID-19 has greatly affected the legal process. As attorneys we constantly receive notices of court adjournments, video conferences, and telephone calls, in lieu of in-person hearings and filings. In the field of trusts and estates, these changes are felt deeply, as probate and administration matters are delayed, estate settlements postponed, and  guardianships and conservatorships — proceedings that affect those most vulnerable in our society — are rescheduled.

Since 2008, pop superstar, Britney Spears, has been the subject of a California conservatorship. A conservator or guardian is a remedy used when an individual is unable to provide for her personal or financial needs. Spears’s father Jamie Spears, and attorney Andrew M. Wallet were the originally appointed co-conservators charged with managing her financial and personal affairs. In 2019 Wallet resigned, and Spears’s father stepped down in September 2019 due to personal reasons. Jodi Pais Montgomery, a licensed professional fiduciary, is serving as Spears’ temporary guardian.

Court papers signed by Judge Brenda Penny of the Los Angeles County Superior Court indicate that Montgomery will serve as temporary guardian until at least August 22, 2020. On the docket is a hearing to determine the state of the conservatorship which likely includes whether it should continue. Due to COVID-19 and the closing of courts, the hearing, which was supposed to have already occurred, is adjourned due to the risk of spreading the disease during this epidemic. Spears’s proceeding is one of many guardianship hearings adjourned due to COVID-19. Spears, unlike many, has a temporary conservator in place, maintaining the status quo.

Spears’s conservatorship proceeding was commenced following years of erratic incidents such as her 55-hour marriage to Jason Alexander, shaving of her head, tumultuous marriage and divorce from Kevin Federline, and rehab.  Since the implementation of the conservatorship Spears has had periods of success, both personally and professionally. She is the mother two sons, headlined her own Las Vegas show, judged X Factor, is reportedly worth upwards of $50 million, and has had a relationship with Sam Asghari for several years.

Conservatorships, referred to as guardianships in some jurisdictions, can be indefinite or for a set period of time. Often an individual under a conservatorship will petition the court to end or reduce the powers associated with the arrangement. This can be the case after an acute disability ends or when an individual recovers from illness. For chronic or progressive disabilities, it is harder to end. The question that the court will decide is whether danger will emerge as a result of the suspension of  the current arrangement. Has Spears recovered or is she doing well because of the arrangements put in place by the conservator? The court may consider what can be done in order to make the conservatorship as least restrictive as possible.

Court adjournments, even in the age of COVID-19, do not normally make the news. Besides Spears’s tremendous fame and popularity, the existence of a conservatorship for her, now at 37 years old, is of interest to many, whether or not they know her songs or follow her on Instagram. Moreover, Spears’s very public engagement with her fans through social media is constantly placing her in the news and providing fodder for which people can assess whether she needs some kind of supervision. For example, a recent Instagram post revealed that she accidentally burned down her gym by way of unattended candles. Happily, Britney reported, all is well and no one was hurt. That post was followed by news outlets reporting the adjournment of her hearing, reminding us all of how complicated a conservatorship, especially this one, can be.

Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.

The low thrum that ran through creative corridors in Brooklyn, Austin, Portland, and beyond last month was the sound of scores of photographers and other creators smashing the switch that converted their Instagram accounts to the once-shunned “private” mode.

This mass action was the begrudging result of a court decision emanating from the Southern District of New York. This decision, Sinclair v. Ziff Davis, LLC; Mashable, Inc., held that Instagram, though a series of convoluted and poorly worded, online-only agreements, had the right to exploit its users’ content in any way it saw fit. Worse, as found by the court, these agreements automatically granted a sub-license to exploit Instagram users’ content to just about anybody on the internet. In other words, the entire world.

Stephanie Sinclair, the plaintiff in the case, was an award-winning photographer known for tackling gender issues who created a resonant work addressing child marriage in Guatemala. The defendant was Mashable, a website for which Ziff Davis seems to have paid a mere 50 million bucks back in 2017 before abruptly relieving it of a chunk of its staff. The site has since published a lot of reposted material and clickbait, including an “article” that incorporated one of Sinclair’s works from Guatemala. A Mashable writer reached out to Sinclair to seek consent to do so, but Sinclair declined. Mashable, though, ignored her wishes and forged ahead with publishing her work, in apparent violation of her copyrights.

The court, for its part, found Mashable’s publication without consent to be proper on the basis that Sinclair had posted the work on Instagram at some point. It concluded, in essence, that if one posts a photograph to Instagram, then any other user of Instagram can later publish that work anywhere and in any context it wants, so long as it “embeds” the photograph with the Instagram frame. Per the decision, this third-party user can add your original work to a clickbait website in a thicket of banner and pop-up ads or to a softcore hate or pornography site. Your right to control your work, per this decision, goes up in smoke once you post your work on Instagram.

Sinclair, of course, represents a single nonbinding district court decision, and one that conflicts with Agence France Presse v. Morel, the long-standing precedent that rejected the same “social-media sub-license for the entire internet” defense that was favored in Sinclair. Morel analyzed Twitter’s online terms, which “grant[ed] [Twitter] a worldwide, non-exclusive, royalty-free license (with the right to sublicense),” and correctly found that the sub-license did not extend to everyone on the internet that happened to log on to Twitter. Morel’s analysis is not distinguished or addressed in any way in Sinclair.

The Sinclair analysis is further flawed for a quartet of compelling reasons.

First, there is a question as to whether Instagram’s “browsewrap” license even bound Sinclair. The various pages of sloppily interwoven legal terms that a user putatively agrees to when signing up for Instagram are located on discrete pages that are only accessible by exiting the sign-up page via link. And there is no requirement that the user visit that page, let alone read the terms, before using Instagram. The Second Circuit has previously held, in Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 32 (2d Cir. 2002), that “where consumers are urged to [take certain action] at the immediate click of a button, a reference to the existence of license terms on a submerged screen is not sufficient to place consumers on inquiry or constructive notice of those terms.” That would seem to apply here, in which case Sinclair would not be bound to Instagram’s confusing and onerous terms, including the license, in the first place.

Second, the Sinclair court collapses and conflates Instagram’s Platform Policy with Instagram’s Terms. The latter arguably applies to users of Instagram like Sinclair and are referenced on the user sign-up screen. The Platform Policy is not referenced on the user sign-up screen and is intended not for general users of the site who post photographs, like Sinclair, but for third-party developers, app companies, and publishers who want to exploit Instagram’s API to republish Instagram content on third-party apps and sites. And, crucially, much of the third-party sub-license language relied upon by the Sinclair court to divest Sinclair of her rights resides in the Platform Policy.

This is troubling because Sinclair, like most photographers, did not appear to use Instagram’s API. And the very first line of the Platform Policy makes clear whom it binds: “By using the Instagram Platform, you agree to this policy.” And the “Platform” is defined not as the Instagram site but as “a set of APIs, SDKs, plugins, code,” and other technology through which data can travel between Instagram and third-party apps and sites. The Platform Policy has nothing to do with a photographer who simply uploads photographs to Instagram, yet it was used to force Sinclair into an unwanted sub-license.

Third, in order to qualify for the Instagram sub-license under the Platform Policy, the third-party user (Mashable here) is required by various provisions of the Instagram agreements to “compl[y] with owners’ requirements or restrictions.” And companies like Mashable are admonished not to “use the Instagram Platform to simply display User Content[.]” Mashable failed to meet these and other conditions in Instagram’s terms, yet the Sinclair court still allowed it to qualify for a sub-license.

Finally, and crucially, assuming that Sinclair was bound by Instagram’s terms, and setting aside that Sinclair was not using Instagram’s API, and excusing Mashable’s failure to abide by the Platform Policy’s conditions, there was no evidence in the Sinclair record that Instagram ever exercised its right to sub-license Sinclair’s photograph to Mashable.

A sub-license right, like most contractual rights, need to be exercised, particularly when they supposedly benefit a third-party. The Sinclair court found that “Instagram validly exercised [its sublicense] right by granting Mashable a sublicense to display the Photograph.” This circular analysis completely elides the step of “how” Instagram exercised this right, as there is no citation to the Instagram agreements or identification of any actions taken by Instagram. And this elision undermines the entire analysis because Instagram’s Platform Policy states that users of its API “don’t have any authority to assume or create any obligation for or on behalf of Instagram, express or implied, and [third parties] must not attempt to bind Instagram to any contract.” Instagram took no action to sub-license Sinclair’s work to Mashable. Instead, Mashable in effect bound Instagram to a sub-license with Mashable. The court’s conclusion that there was a valid sub-license violated contract law, copyright law, and Instagram’s express terms.

There are other irksome issues in Sinclair, including that it was decided at the motion to dismiss stage on a spotty record, and, as the court notes, the Instagram terms it applied may not even have been the same terms in effect when Sinclair “agreed” to them by signing up for Instagram, but for now it stands as the most recent case to test just how onerous are the terms of use for social media platforms. This case, or one like it, will eventually wind its way up to the appellate courts, where we will get further elucidation. For the time being, though, it may be in the best interests of creative professionals who use Instagram to go private or go home.

Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

“I’ll direct your attention, to another time in history, in the Korematsu decision, where the court said the need for action was great and time was short and that justified, and I’m quoting, ‘assembling together and placing under guard all those of Japanese ancestry in assembly centers’ during World War II.”

Because in the mind of Wisconsin Supreme Court Justice Rebecca Bradley, stay-at-home orders during a pandemic are exactly the same as rounding up Japanese Americans in concentration camps.

“Could the secretary, under this broad delegation of legislative power, or legislative-like power, order people out of their homes into centers where they are properly socially distanced in order to combat the pandemic?” she continued, warming to her theme of “a single unelected cabinet secretary” run amok.

Egads, not LEGISLATIVE-LIKE POWER!

The technical term for yesterday’s emergency hearing on the legality of Governor Evers’s Safer at Home Order is a shitshow. Justice Daniel Kelly, who was recently turfed out by Wisconsin voters, referred to his colleague Justice Rebecca Mallet as “Mrs. Mallet.” Justice Bradley cut off Assistant Attorney General Colin Roth to shout incoherently about “tyranny.” And Chief Justice Patience Roggensack objected to an order affecting all residents, since it was only workers in a meatpacking plant getting sick, not “regular folks.”

Yes, really, and yes, that is her actual name.

“(The surge) was due to the meatpacking — that’s where Brown County got the flare. It wasn’t just the regular folks in Brown County.”

You could watch the whole thing here … if you have already watched literally everything else on Netflix, Prime, and Hulu.

Wisconsin’s Republican legislators, fresh off a victory forcing in-person voting during a coronavirus outbreak, have now sued to have the governor’s stay-at-home order declared illegal. And the state’s elected Supreme Court, which currently has a 5-2 Republican majority, agreed to hear it immediately, bypassing the state’s lower courts.

Naturally the hearing was conducted remotely via Zoom to protect the health of the judges. Because bitter irony is not against the law.

As Vox’s Ian Milhiser lays out in detail, Wisconsin’s legislature insists that the health commissioner is obliged to navigate an onerous process involving publication and a ten-day waiting period to invoke any public health measures, all of which can then be overridden by the legislature. This forces the state’s elected officials to disregard the plain meaning of a statute they themselves passed, empowering the health department to “authorize and implement all emergency measures necessary to control communicable diseases” and to “close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemic.” But that statute was last amended in 2015, when they assumed Republican Scott Walker would be governor forever, so obviously it doesn’t count.

And it appears from the hearing that the Wisconsin Supreme Court is inclined to agree with that interpretation.

“My question for you is, where in the Constitution did the people of Wisconsin confer authority on a single, unelected cabinet secretary to compel almost 6 million people to stay at home and close their businesses and face imprisonment if they don’t comply, with no input from the Legislature, without the consent of the people?” Justice Bradley demanded.

“Isn’t it the very definition of tyranny for one person to order people to be imprisoned for going to work, among other ordinarily lawful activities?”

And thus did a woman who throws people in jail and closes businesses for a living protect the people of Wisconsin from the tyrannical exercise of the the state’s public health officials during a viral pandemic. GO BADGERS!

Wisconsin’s Supreme Court Is Going to Use Fox News Arguments to Undo the State’s COVID-19 Restrictions [Slate]
Conservative justices appear skeptical of ‘safer at home’ extension [Wisconsin State Journal]
A Republican lawsuit could force Wisconsin to reopen immediately [Vox]

Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

I know it’s only May 6th, but what with the COVID-19 global pandemic portending the end times (seriously, there are murder hornets now), February 13th seems like a lifetime ago, but it was only a few months ago. Back then, one of the big stories on Above the Law was the tale of Dennis Duffy, the butt-shaking Biglaw partner.

For those of you who don’t remember (and honestly, I wrote the story about him and I barely recalled the details), Duffy was a partner in the Houston office of BakerHostetler and represented Chevron in an employment discrimination case. The plaintiff’s attorney in the case was Alfonso Kennard Jr. of Kennard Law PC. Kennard filed a motion for sanctions and disqualification for Duffy’s “intolerable conduct” during a mediation which allegedly included Duffy “shaking his behind” in front of Kennard. Additionally, the filing alleged Duffy mocked Kennard’s ponytail and intimated that because of the hairstyle, Kennard would want to have sex with Duffy.

Now U.S. District Judge Lee Rosenthal has ruled on the motion for sanctions, and erm, she isn’t happy about it, opening her decision with, “One of the sentences a judge does not imagine—much less welcome—writing includes the words ‘butt shaking’ in describing a lawyer’s alleged actions at a mediation. Sadly, those words fit here.”

But ultimately Judge Rosenthal decided not to levy sanctions on Duffy. She noted that there was significant disagreement over what actually happened at the infamous mediation and said, “While Duffy’s behavior was clearly outside professional bounds, neither counsel was a role model of professional conduct.” She went on:

“No further or formal sanction is necessary at this point. Duffy has had to withdraw. Before he did so, he received national press coverage when the sanctions motion ‘went viral.’ Duffy’s professional reputation, and the closely related ability to attract new business, will no doubt suffer, and they should.”

And on the subject of Duffy’s professional consequences, he is no longer employed at BakerHostetler. As of last month, he works at Kane Russell Coleman Logan in Houston.

You can read the judge’s full order below.

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).

Almost everyone knows that it costs an arm and a leg to go to law school. In fact, the average law school graduate leaves law school with up to six figures in debt. Some law schools, though, are interested in keeping their graduates out of the poorhouse. To that end, a few law schools have been handing out grants to students that often cover more than half of their tuition costs. But which law schools are the most helpful when it comes to assisting students with their tuition payments?

U.S. News obviously has a ranking for that, but like almost everything associated with their law school rankings, the data is off by a year. That said, feast your eyes upon the top 10 schools that offer the most tuition help. All data discussed here is for the 2018-2019 academic year. Things may have changed for the 2019-2020 academic year.

1. Penn State – Dickinson: Tuition: $50,582 in-state and out-of-state / Median grant: $49,896 / 93.2 percent of grant recipients received grants that covered more than half of their tuition

2. Penn State – University Park: Tuition: $50,984 in-state and out-of-state / Median grant: $49,896 / 90 percent of grant recipients received grants that covered more than half of their tuition

3. Belmont: Tuition: $44,470 / Median grant: $32,572 / 88.2 percent of grant recipients received grants that covered more than half of their tuition

4. UNLV: Tuition: $27,023 in-state, $38,923 out-of-state / Median grant: $30,000 / 85.6 percent of grant recipients received grants that covered more than half of their tuition

5. George Mason: Tuition: $25,354 in-state, $40,740 out-of-state / Median grant: $25,900 / 84.7 percent of grant recipients received grants that covered more than half of their tuition

Click here to see the rest of the rankings.

As we frequently mention, financial futures are on the line when law school attendance is in play. Information like this is readily available online, so please do your research before making a decision as to which law school you’ll choose.

10 Law Schools That Offer the Most Tuition Help [U.S. News]

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.

No one wants to get a robocall, but there’s someone on the Supreme Court who may hate them even more. During oral argument on Barr v. American Association of Political Consultants, the case considering whether the carve-out allowing government debt collection robocalls renders the whole Telephone Consumer Protection Act robocall ban unconstitutional, Latham’s Roman Martinez, counsel for AAPC, was minding his own business and outlining his case when someone forgot they had a hot mic:

Welcome to the Wednesday Oral Argument Morning Zoo! Let’s hope this ushers in a new era of judicial sound effect boards to give the audience a real show now that these arguments are going out live. Unfortunately, what this is really going to do is allow the Court to say, “this is why we can’t have transparency” and snuff out these public trust-building measures in the crib. Or, maybe that’s the wrong imagery — more like disposing of a goldfish.

It’s not clear who decided to flush Martinez’s argument but one assumes it has to be one of the justices or opposing counsel and it’s hard to believe even this Justice Department is taking a leak in the middle of an argument.

My money’s on Clarence Thomas. He spoke during arguments just the other day meaning he’s not due to have to pay attention for a solid five more years.

In any event, when history looks back, there may not be a more fitting historical record of the Roberts Court than this clip.

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.