Category: News Feeds

WASHINGTON: Army Secretary Ryan McCarthy will have a conference call with House Armed Services Committee members this afternoon to answer questions about the now-dwindling deployment of 5,200 National Guard members to Washington last week, and why Guard helicopters buzzed protesters.

McCarthy’s call comes as House lawmakers are fuming over the refusal of Defense Secretary Mark Esper and Chairman of the Joint Chiefs Mark Milley to appear before them this week.

HASC chairman Rep. Adam Smith and 30 Democratic HASC members issued a statement calling Esper and Milley’s absence “unacceptable,” adding, “we insist that they appear before our committee. Our military leaders are sworn to be accountable to the people of this country, and Congress is constitutionally responsible for oversight. They must appear and testify on these crucial matters in order to meet that responsibility.”

Pentagon spokesman Jonathan Hoffman said in an email that Esper and Milley “have not ‘refused’ to testify before the HASC as some are reporting. The DOD legislative affairs team remains in discussion with the HASC on this request.”

However, McCarthy, Army Chief of Staff Gen. McConville, and DC National Guard Commanding General Maj. Gen. Walker are talking to the committee today.

Esper and Milley have come under fire for their handling of the situation in Washington, including stationing 1,600 active duty troops just outside of the capital, and accompanying President Trump on his June 1 march to St. John’s Church one block from the White House after Lafayette Square was violently cleared of protesters on orders of administration officials.

“We came right up to the edge of bringing active troops here, and we didn’t,” McCarthy told reporters yesterday, a call in which he took responsibility for the deployments of Guard members in the city. 

McCarthy said he and Walker “drove all over the city, talking to soldiers and telling them to keep your cool, keep your cool and continue to keep the temperature down. People are angry and frustrated, as they should be, and we are working really hard with that.”

A major point of concern are the actions of the U.S. Park Police and supporting forces to clear the park before the president’s now-infamous walk. 

The melee, which captured headlines around the world for the swift and violent action by police to push protesters back remains shrouded in mystery. A week later, it remains unclear who gave the actual order to move, and when. Attorney General William Barr has spent several days denying responsibility, despite early reports that he told the police to clear the area. Pentagon and Army leaders have said they had no idea the push was coming.

Walker told reporters Sunday that frozen water bottles and eggs has been thrown at police by protesters on the day before the clearing operation. Five soldiers were hit in the head and one suffered a concussion. But Guard members did not “use force of any kind on protesters. As far as National Guardsmen pushing back, that did not happen. They were never aggressive, never offensive. They took a strictly defensive posture.”

Despite that restraint, Walker and McCarthy appeared to be unaware of any order for the police to charge the protestors, in which video has emerged of officers beating journalists and shooting tear gas into the crowd. McCarthy said he “did not know what triggered the Park Police to make the clearing” and that an ongoing investigation should clear up some of the confusion. The Australian ambassador to Washington, Australia’s ambassador to the United States publicly complained about the attack on Channel 7 TV reporters at the park. The network’s news director Craig McPherson called the police’s action “nothing short of wanton thuggery.”

“I do not know why they advanced,” Walker said of the Park Police. “We were directed to maintain the line.”

That confusion will surely be a prime avenue for lawmakers to explore, as well as the Lakota and Black Hawk helicopters caught on video hovering low over protesters, generating such powerful downdrafts that branches snapped off trees. 

McCarthy took responsibility for the use of helicopters and said an investigation has been opened into the tactic, which has been derided as dangerous in such a dense urban environment filled with mostly peaceful protesters. Walker added that he did not issue any orders to employ helicopters to disperse crowds, but would not offer any specifics on what happened, only adding that an investigation should be wrapped up and released later this week. The head of the DC National Guard has opened an investigation into the matter.

The Guard deployment, which peaked last week at 5,200 troops, is quickly winding down. Troops from Maryland, New Jersey and Mississippi have already left Washington, while Guardsmen from Florida, Utah, and Indiana, are heading home today. The remaining troops from Missouri, South Carolina, Ohio, Idaho, and Tennessee will likely be gone by Tuesday.

While the active duty forces are gone, and the guard is on its way out, the police presence in downtown Washington remains substantial. The White House resembles a fortified bunker behind rings of eight-foot high reinforced fencing and security from the bottom of the Ellipse to the north side of Lafayette Park. In a remarkable bit of doublespeak, the Secret Service release announcing the enormous expanse of fencing says: “These closures are in an effort to maintain the necessary security measures surrounding the White House complex, while also allowing for peaceful demonstration.”

Lawmakers get the chance to talk to Army and Guard leadership today, but with Milley and Esper holding out, and markups on the 2021 National Defense Authorization Act getting underway this week, it could be a long summer on Capitol Hill for the Pentagon. 

Still, McCarthy said he’s probably best-suited to explain to the Congress what happened in Washington, and why. “I’ve been intimately involved in the process and can explain a lot of the decisions,” he said. “General Walker, as the commander, was pretty well-suited to explain our actions” that took place between May 29 and today.

“What do you call a lawyer that you like and can’t live without?” the president asked the board. After a prolonged pause, he said, “You call that person the general counsel.”

And that is how I got my first in-house role, my first general counsel role, at a 100-year-old organization that had never had an in-house lawyer, let alone a general counsel.

Firsts are filled with dreams and hopes. They are difficult and complicated for everyone involved. But they are also full of opportunities.

‎Elizabeth Benegas, General Counsel of NetDocuments, and I dive into the complexities and richness of being the first in-house lawyer.

This led to a great discussion! What challenges might the first in-house or general counsel face? When is the right time to hire your first in-house or general counsel? How do you think about it? And much, much more.

It turns out that being the first GC is unique and rewarding.

“Being the first in-house attorney/GC allows for a unique opportunity to take a deep dive into learning the business and establishing strong partnerships with the other leaders.” said Jill Passalacqua, the vice president, general counsel, and corporate secretary of Avi Networks. She explained, “Setting the tone for the legal function and being seen as someone who drives business, not just managing risk. Agreed, it’s never too early to bring in your legal partner!”

Justin Cousino, the general counsel of Grammer AG, said, “This has been my life for my last three GC roles! It is great to go into a company that has never had in-house counsel and help improve their operations and bring a ton of ROI!” He explained, “Easiest is clearly outside counsel spend. Second is vendor/customer management spend (i.e., negotiating proper contracts, settling issues prior to litigation or emphasizing proper stance). Third, and most importantly, labor relations. With proper training and refreshers, in-house legal can amplify employee retention resulting in decreased turnover (cost savings) and avoid or potentially minimize EEO claims, even those frivolous ones from aggrieved terminations.”

Lisa Gilley, the general counsel at Higher Logic, further explained, “I’ve been a “company’s first GC” three times in my career. The GC role always requires a unique combination of legal, business, and interpersonal skills — but a “first” GC also needs to demonstrate value, understand business needs, drive deal-making, and eliminate barriers to growth. When this proactive legal approach aligns with business goals, the GC becomes a full partner in the growth and future of the company. Rewarding work!”

So, the challenges … there are many!

Lisa Lang, the general counsel of Kentucky State University, said, “Understanding the role of general counsel and how that general counsel is different from outside counsel.” Talar Herculian Coursey, the general counsel at Vista Ford, agreed.

So… when to hire? The consensus: it is never too soon.

According to Lang, “In a perfect world, all companies would have one in this litigious world. If you decide to move forward without one you should reconsider when you find yourself calling outside counsel for more than just your litigation needs or, heaven forbid, or the threat of litigation increases.”

Likewise, Caroline McCaffery, former serial general counsel turned CEO and founder of ClearOPS, Inc., said, “I joined as GC twice to startups that were sub-20 employees. I think it’s never too early!”

Being the first general counsel of a legacy organization was one of the most rewarding experiences of my life. I learned more than I ever thought I could from one role, and I was challenged to think outside the box that my legal training built. But even more important than my growth was that of the organization I worked for. Just having a general counsel, or an in-house legal staff of any kind, forced them to think of themselves, their business, and their challenges in a new light. No one exists outside the law. It affects every decision we make.

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Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.

Missouri is monitoring the ongoing COVID-19 outbreak and is very concerned about the risk of exposure. Not the exposure of test-takers, but the more important exposure of the bar examiners to liability after they pack applicants into a crowded hall for a July exam.

That’s why Missouri is joining Mississippi and North Carolina in seeking some sort of weasely cover for themselves in the form adding a liability waiver to the forms applicants have to sign to go forward with the exam.

As we’ve pointed out before, waivers are for bloodsports and human subject trials. If a state seeks this kind of waiver, it’s implicitly recognizing that the July in-person bar examination is the sort of inherently dangerous activity that really doesn’t need to happen at all. There are certainly ways to screw up an online exam process — trust us, DC found a way — but by and large moving to remote testing at a time when new cases in Missouri are seeing triple-digit increases is the more prudent course of action.

But as long as the bar examiners aren’t getting sued, they’re fine turning the exam into the Lake of the Ozarks.

Earlier: North Carolina Also Demands Waiver In Case It Kills Anyone With Bar Exam
Bar Exam Applicants Forced To Sign COVID Waiver In Case In-Person Exam Ends Up Killing Them

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Guess which White House employee just got caught casting a mail-in ballot using a false address. No, not the president. That was last week.

Here’s a hint: After Trump ranted about widespread vote fraud and kids who “raid the mailboxes and they hand them to people that are signing the ballots down at the end of the street,” this Harvard Law grad and ATL alum defended her boss, telling Newsweek, “Absentee voting has the word absent in it for a reason. It means you’re absent from the jurisdiction or unable to vote in person. President Trump is against the Democrat plan to politicize the coronavirus and expand mass mail-in voting without a reason, which has a high propensity for voter fraud. This is a simple distinction that the media fails to grasp.”

Oh, you dummies in the media! Or perhaps not, since Newsweek managed to suss out that Press Secretary Kayleigh McEnany voted by mail 11 times since 2010, and now Huffington Post’s S.V. Date and Ryan Reilly have discovered that McEnany used her parents address in Tampa to cast her votes in the 2018 midterms, despite living in DC, possessing a New Jersey drivers license, and owning a separate home in Tampa with her husband. Whoopsie!

In 2017, McEnany was appointed spokeswoman for the Republican National Committee (RNC), which is headquartered in Arlington, Virginia. In 2019, she joined the Trump campaign as national press secretary, during which time she voted by mail in Florida’s March 2019 presidential primary, before taking a job at the White House this past April. There are a lot of places in the DMV where McEnany could have resided in the past three years while shilling for the Trump team full time, but Florida isn’t one of them.

Indeed, it’s not clear when McEnany last resided in the Sunshine State, although she and her husband Sean Gilmartin, a pitcher for the Tampa Bay Rays, do own a home in Tampa. According to HuffPo, McEnany held a driver’s license from Edgewater, New Jersey, when she purchased the Tampa residence in 2017. Because, sure, why not.

HuffPo reports that McEnany was interviewed by a Tampa radio station in 2019 and claimed that she worked in DC but flew to Florida “pretty much every weekend.” And later that year, she did manage to switch her official residence to her own house in Tampa, yet in both the primary and general elections of 2018, McEnany mailed in her vote using her parents’ address to substantiate Florida residency. And in the March 2020 presidential primary, she cast a mail-in ballot in Florida, although she was then employed full time for the Trump campaign, living in DC.

All of which is rather awkward for a person whose party is incessantly flogging conspiracies about electoral fraud and the need to “True the Vote” by purging voters. Wisconsin’s GOP is suing to toss 129,000 voters off the rolls for potential ineligibility due to address changes, Crystal Mason, a black mother of three in Texas, is facing a five-year sentence for mistakenly casting a ballot when she was ineligible, and the president is peddling nonsense about illegal voters who “go to their car, put on a different hat, put on a different shirt, come in and vote again.”

Meanwhile the president is trying to register to vote using his business address and his 32-year-old spokesperson voted multiple times using her parents’ address where she does not appear to have resided since she graduated from high school. Will McEnany face prosecution by the state of Florida for illegal voting?

Don’t hold your breath. Although … if she did happen to, say, file her state return in Florida, which has no income tax, while spending upwards of 180 nights a year in DC and working there full time, those “dummies” in the media are probably going to figure it out. Because DC residents have to pay DC taxes, no matter where they claim to “reside.” And that’s a “simple distinction” even a Harvard Law grad should be able to grasp.

As They Scream Voter Fraud, Trump And His Press Secretary May Have Voted Illegally [HuffPo]

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

Who would have thought that with the nation slowly rising out of (hopefully) the worst of the COVID-19 pandemic, we would become embroiled in civil unrest resulting from the horrific mistreatment and death of George Floyd at the hands of now-former police officers of the Minneapolis Police Department. Like most Americans with a conscience, I remain stunned and horrified by it. As it is an election year, it is no surprise that President Donald Trump and Joe Biden have both weighed in on the matter. What is interesting, however, is that Trump’s campaign created a 4-minute video tribute to George Floyd that was posted on social media yet unceremoniously removed soon thereafter on Twitter and Facebook’s Instagram ostensibly on copyright infringement grounds. Oddly, it’s not just the reasons for the takedowns but the assumptions underlying the content that are worth closer examination, whether or not politics has anything to do with it.

Given that the recent tragedy and aftermath seem the impetus for the video, some of the published facts would be helpful.  On May 25, 2020, George Floyd (a 46-year-old black man) died in Minneapolis, Minnesota, after Derek Chauvin, a white police officer, basically knelt on Floyd’s neck for over eight minutes while Floyd was handcuffed and lying face down on the street. Despite Floyd’s pleas that he couldn’t breathe, the surrounding police officers did nothing to intervene. Heartbreaking. This event has stirred-up protests throughout the nation, as well as serious unrest and looting in some metropolitan areas. In the wake of this tumult, Trump’s presidential campaign put together a video intended to be a tribute to Floyd to unite Americans. Instead, the takedown by Twitter and Instagram has caused even more controversy.

The video (which, interestingly, remains available on YouTube), depicts a montage of no less than 141 videos and still photographs (yes, I counted), with Trump addressing the tragedy, sympathizing with the peaceful protesters, and condemning “rioters, looters, and anarchists” for dishonoring the memory of Floyd.  It ends with the word “Unite.” Regardless of your political persuasion, it is hard to argue that the video is not a powerful one. That said, Twitter quickly removed the video from its platform, claiming it was doing so consistent with its terms of service due to “a DMCA complaint from copyright holder.” Apparently, Facebook made the same assertion for the Instagram takedown. Oddly, YouTube did NOT remove the video from its platform, despite having also received a DMCA takedown notice. Interesting, indeed.

Whether or not you agree with Twitter and Facebook (or YouTube for that matter), the fact remains that the takedowns further enraged the Trump campaign and place additional scrutiny on social media, the DMCA, and immunity under Section 230 of the Communications Decency Act (CDA).  Given the recent executive order signed by Trump directing federal agencies to alter their interpretation of the liability protections afforded internet service providers under Section 230, these takedowns are further fanning the flames of the debate.

I have written previously about how political campaigns should avoid certain assumptions regarding the use of copyrighted music. The following are a few considerations that bear consideration by political campaigns when compiling other audiovisual content for political ads and other campaign videos:

Never Assume That The Intended Use Qualifies As Fair Use. Except for those areas expressly identified as non-infringing uses under Section 107 of the Copyright Act, any determination of “fair use” of a copyrighted work requires weighing factors that includes the following four factors:

1. “the purpose and character of the use” (e.g., commercial use or nonprofit educational purpose);
2. “the nature of the copyrighted work”;
3. “the amount and substantiality of the portion used in relation to the copyrighted work as a whole”; and
4. “the effect of the use upon the potential market for or value of the copyrighted work.”

No matter how appealing, assuming that the use of another’s artwork or video in a political ad or campaign video qualifies as “fair use” of the work is ill-advised. Such “political fair use” is by no means consistently handled by the courts, so there is little guidance that a court would weigh the factors in a campaign’s favor. Without question, care should be taken when considering “fair use” in this context.

Never Presume Consistent Application Of Social Media Terms For Political Content. If it seems that I frustrated by how social media platforms handle these requests, I am. From what I can gather, the same DMCA notice was sent to Twitter, Facebook (Instagram), and YouTube, yet only Twitter and Instagram complied. YouTube did not find the “protected material” in the video on its site, however, so the video remains posted on their platform (for now). As a private practitioner, it is difficult to advise clients on DMCA takedowns when there is little consistency not only between platforms, but within the platforms themselves (let alone for political content in this day and age). Always be aware of the IP infringement policies of the platform at issue, and then research how they have handled such claims as best you can — it will provide needed perspective.

Never, Ever, Assume The Copyright Holder Agrees With You. No matter how ostensibly unifying the message, political campaigns foment strong opinions. There is never a guarantee that the copyright holder will agree with the message, no matter how benign the campaign may think it to be. This goes beyond the DMCA takedown — copyright holders with large social media followings can wreak havoc on a campaign by unleashing followers. Although Trump seems to relish fighting back against such trolling, not every campaign is anchored by such a personality running for office, so politicians beware.

What cannot be ignored here, however, is that the rights of copyright holders and websites should always remain balanced against public policy considerations underlying the use. From my perspective, the DMCA does not account for such balance — it is a procedural mechanism for notice to the social media platform (or website operator) and a potential counternotice by the poster of the content to defeat the takedown. For example, the 141 videos and still photographs show protests, rioting, street art depicting George Floyd, as well as police offers embracing protesters (to name a few), all stitched together consistent with the narration provided by Trump — there is no information as to which element of the video triggered the DMCA notice, but it seems to be just one of the videos or photos. Any DMCA takedown premised upon a single video or photograph appears harsh, and obtaining consent from all of the copyright holders before posting is simply not feasible for this type of work. Whether or not you agree with the takedowns, I think the debate about the DMCA (recently the subject of Senate hearings)  as well as Section 230 of the CDA (misconceptions of which I wrote about last week) has been a long time coming. So political campaigns should take heed — the protests involving the Floyd tragedy are ongoing, but the protests over copyright, the DMCA, and Section 230 have just begun.

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

Maryland lawmakers have introduced legislation to do a little Capitol remodeling. Specifically, they’re hoping to swap out a bust adorning the old Supreme Court chamber where for the last 143 years, the state has been represented by Dred Scott author Chief Justice Roger Taney.

George Templeton Strong best summed up Taney, writing upon the occasion of his passing, “the Hon. old Roger B. Taney has earned the gratitude of his country by dying at last. Better late than never.” During the initial debate to get Taney’s bust into the Capitol building, a New Hampshire senator said that Taney “sank into his grave without giving a cheering word or a helping hand to the country he had vainly sought to place forever by judicial authority under the iron rule of the slave-masters.”

Yet Taney eventually got his bust and it’s managed to remain undisturbed as the world changed in fits and starts — and setbacks — for almost a century and a half. Even the Maryland statehouse quietly dumped their Taney tribute.

But now Maryland’s senators, with backing from the Democratic members of the Maryland House delegation, are proposing to junk the bust in favor of Baltimore native Thurgood Marshall.

If successful, the replacement would provide a fitting closure to the history of Maryland’s place in the old chamber. A jurist famed for his staunch defense of the system of slavery replaced by the nation’s first justice descended from slaves. Thurgood Marshall’s legacy as an attorney, Johnson administration official, and Supreme Court justice deserve tribute in the Capitol regardless, but to bring that tribute at the symbolic expense of a man who worked to prevent all of Marshall’s accomplishments would only underscore the significance of his enshrinement.

Taney’s earned his place in the dustbin of history, it’s time for Congress to help him move.

Thurgood Marshall bust would replace one of Roger Taney in U.S. Capitol under legislation introduced by Maryland senators [Baltimore Sun]

Earlier: Horrible Justice No Longer Has Horrible Statue

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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.

After a week in which issues of race and injustice have dominated the news and our thoughts, those of us involved in legal technology need to acknowledge that this industry has a diversity problem of its own and begin to explore what can be done about it.

When I say this industry has a diversity problem, I can’t point to much in the way of hard data. I know of only one study of racial diversity among founders of legal tech companies. It was conducted two years ago by Kristen Sonday, cofounder and COO of legal tech startup Paladin, a pro bono management platform.

As I reported then, Sonday analyzed the backgrounds of 478 founders from 269 legal tech companies. She found that only 26 were black or Latinx. As percentages, 2.3% of founders in legal tech were black and 3.1% were Latinx. Even when accounting for Asian, Indian, and Middle Eastern founders, the total number of founders of color was still just 26.5%.

Sonday also looked at gender diversity. She found that just 13.8% of legal tech founders were women — less even than the average across industries of 17% women founders.

A study published two months ago of legal tech in Australia found that 30% of Australian legal tech companies had women as founders or cofounders. That study did not look at racial diversity.

If there have been other studies of racial diversity in the legal tech industry, I am not aware of them. However, observation is enough to tell us that black and Latinx founders remain only a small fraction of those at the helms of U.S. legal tech companies.

And founders are only part of the picture. It is equally important that there be diversity among those who work in legal tech — in management, engineering, sales, marketing, and everywhere else. Here again, observation of those who staff trade-show booths or speak on educational programs suggests that diversity is severely lacking.

So what can be done to increase diversity in the legal tech industry?

I put that question to Bryan Parker, cofounder and CEO of Legal Innovators, an alternative legal services provider that focuses on enhancing diversity and inclusion. Parker was the guest Friday on our Legaltech Week journalists’ roundtable, which we devoted this week to a conversation on race in law.

After starting out as an M&A lawyer at Shearman & Sterling, Parker left law for a career as an investment banker and serial entrepreneur. In recognition of his many years of corporate leadership, he was selected for membership in the Executive Leadership Council — a national organization of African-American CEOs and senior executives at Fortune 1000 and Fortune 500 companies.

He published an article last week in The American Lawyer, What the Death of George Floyd Should Teach the Legal Industry.

During our Friday roundtable, when I asked him that question, he offered several thoughts on how to increase diversity in the legal tech industry:

• Consumers can help drive change. Consumers have been the driving force pushing change at some of the world’s largest technology companies, including Google, Facebook, and LinkedIn. Legal tech startups are no different than Silicon Valley startups in this regard. Although Parker did not say this explicitly, I take that to mean that those who are purchasers of legal tech products — law firms, legal departments, legal organizations — should look for and even demand diversity in the companies with which they do business.
• Diversify the pipeline of those coming into the field. If we want to increase diversity in legal tech, we need to increase the diversity of the pipeline of those coming into the field. That requires starting earlier to look for individuals who are interested in careers in both law and technology, increasing their access to STEM programs, and providing funding for them to participate in STEM programs.
• Define and track metrics for diversity. Part of the answer to diversifying the pipeline is to define and track the metrics of success. “What we measure ends up becoming true, these are the results we end up seeing,” Parker said. “Let’s measure the right things that we want to see change and then let’s contribute to them.”
• Provide mentorship. Noting that part of his company’s model is based on the European concept of apprenticeship, Parker urged a similar approach to bringing diversity into legal tech — take those people who could one day be legal tech founders or engineers and pair them with people or internship programs where they can get mentorship.

The educational system is key to feeding this pipeline, Parker emphasized, noting that, 65 years after Brown v. Board of Education, in which Supreme Court Chief Justice Earl Warren urged integration “with all deliberate speed,” equal opportunities in STEM careers are still lacking.

“Tell me in what world ‘all deliberate speed’ equals 65 years,” Parker said. “This is why we have to measure things and hold people accountable.”

I would add that one other way to promote diversity in legal tech is through investment dollars.

Three months ago, I reported on a survey done by Dana Denis-Smith, CEO of Obelisk Support in London, in which she looked at 10 years of investments in legal tech and other “new law” companies. She found that just under 1% of formal investment overall in the new law sector had gone to companies founded solely by women.

Her study did not examine investments by founders’ race. But whether with regard to gender or race, it stands to reason that investors in legal technology can have a significant impact in promoting diversity by the choices they make in where they put their dollars.

As in all aspects of our lives, the greater the diversity in legal tech, the more we all stand to benefit, whether we are developers of products or purchasers, whether we are those who deliver legal services or those who receive them.

And we can all play a role in helping to make greater diversity a reality.

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Robert Ambrogi is a Massachusetts lawyer and journalist who has been covering legal technology and the web for more than 20 years, primarily through his blog LawSites.com. Former editor-in-chief of several legal newspapers, he is a fellow of the College of Law Practice Management and an inaugural Fastcase 50 honoree. He can be reached by email at ambrogi@gmail.com, and you can follow him on Twitter (@BobAmbrogi).

With a pandemic still out there and the prospect of being locked indoors with thousands of strangers for two days a daunting prospect, the District of Columbia bar examiners came to the conclusion that the planned September administration of the bar would be simply too dangerous. Instead, the jurisdiction announced that they’ll be scrapping that plan and offering an October exam to be administered remotely. This sounds like good news… but it’s not.

This is what Indiana and Michigan are already doing and is obviously the most responsible course of action assuming we’re going to stick with having a bar exam and not just blowing past that requirement and making serious reforms to law schools and attorney licensing.

Except, as the NCBE reminds us, they’re refusing to put in the modicum of effort required to offer the UBE online, meaning all of these jurisdictions — including DC — will have to offer tests with scores that aren’t transferrable anywhere else. Other states could and should pass immediate reciprocity rules allowing those who pass online exams in 2020 to move, but common sense is fraught with apathy.

This all goes to the heart of what DC managed to get wrong about doing the right thing. Washington attorneys thrive on being admitted other places. Indeed, most folks don’t even take the DC bar exam, but instead waive in from other states, making the lack of portability fatal to this plan. For those who really are committed to only practicing in the District this doesn’t matter, but for the majority of applicants, going to a non-transferrable test is a dealbreaker and they’d be better off sitting out the 2020 exam and taking a different test later.

But the DC bar made this change while sticking to its commitment to not offer refunds. Applicants who get little to no value out of a non-transferrable test are simply out their $232. There’s a chance that a pending court order clarifying the move will see the light and let people get their refunds, but no one should hold their breath.

Like most things in life, it’s all about context. Michigan doesn’t need to refund anyone to go online because everyone taking the Michigan bar intends to practice primarily in Michigan. Early in the crisis, some speculated about taking bar exams in jurisdictions that they never intended to practice in just to get a portable score, but many states explicitly prohibit this sort of forum shopping — if you want a score from one of those states, you’re going to have to jump through the local practice hoops in those states.

But that’s not the space that DC occupies in the legal landscape. DC practitioners often work in surrounding states and attorneys from all over the country have valid reasons to also be admitted in DC. It’s the melting pot of attorney licenses. If it can’t afford portability then its bar exam is quite simply no longer the product that many applicants signed up for.

While there are those angry at the DC bar examiners for making online move, this is misplacing the anger a bit. It’s the right thing to do at this juncture. If the NCBE wants to get onboard with reality and produce an online test, that would solve everyone’s problems, but barring that — look, a pun! — jurisdictions going solo and online is a prudent move. At the same time, holding applicants hostage to a test after the value proposition has fundamentally changed is uncalled for. Both things can be true.

Just give people their money back if they don’t want to take an online exam.

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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.

Oklahoma State University’s men’s basketball team is banned from participating in the 2020-21 postseason. It is probably the toughest penalty that the school received on June 5 after the NCAA’s Division I Committee on Infractions determined that a former basketball associate head coach at the school violated NCAA ethical conduct rules by accepting thousands of dollars in bribes from a couple of financial advisors.

The public infractions decision was made public in a 27-page document, which also included discipline on the university’s athletic department by way of a three-year probation, a reduction of men’s basketball scholarships through the 2022-23 academic years, a $10,000 fine plus 1% of the men’s basketball program budget, as well as other penalties. The former basketball associate head coach, Lamont Evans, also received a 10-year show-cause order, which means that if Evans is hired by a program, the school will be required to show cause as to why Evans should not be restricted from any athletically related duties. Many believe that this means Evans will be precluded from coaching college basketball players for at least the next 10 years and likely for the rest of his life.

Evans was arrested in September 2017 for allegedly accepting the aforementioned cash bribes in exchange for a promise to persuade college basketball players to retain certain financial advisors when the players ultimately became professionals. Testimony elicited in the judicial proceedings indicated that the financial advisors paid Evans roughly $2,000 per month for some time as part of the scheme.

Additionally, meetings were allegedly set up by Evans in an effort to connect certain basketball players with the financial advisors. The public infractions decision highlights a meeting that was set up between an Oklahoma State basketball player and one of the financial advisors as well as another meeting between the other advisor and a family member of a college basketball player, not affiliated with Oklahoma State, who had declared for the NBA Draft.

NCAA rules prohibit athletics department staff members, including an associate head coach, from receiving benefits in exchange for facilitating or arranging a meeting between a college athletes and a financial advisor.

“As the associate head coach admitted in his sentencing hearing, he abused this trust for his own personal gain,” states the public infractions decision. “He sold access to student-athletes and used his position as a coach and mentor to steer them toward a career decision — retaining the financial advisors’ services — that would financially benefit him. In short, he put his interests ahead of theirs.”

The deadline for Oklahoma State to file an appeal of the decision is June 20. The school has indicated that it is “stunned by the severity of the penalties and strongly disagrees with them” and that it will file an immediate appeal of the penalties. Thereafter, the appeal will be heard by the NCAA’s Infractions Appeal Committee and, if upheld, Oklahoma State will need to bear the consequences of the acts of its prior associate head coach.

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Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.