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Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to data collected by Law.com, which NLJ 500 firms shrank their headcount in 2019, but have laid off or furloughed employees during the economic turmoil caused by COVID-19?

Hint: At these firms, headcounts went down between 1 and 2.7 percent last year.

See the answer on the next page.

My grandfather used to have a saying: “Do today’s work today.” This is, I appreciate, not a unique idea, and indeed is pretty widespread, but I’m going to attribute that to it being a generally good universal principle to live by. Fleetwood Mac, whose songs are all secretly productivity tips, even sang about the idea on the third single from Rumours, “Don’t Stop.”

Most procrastination can be solved by just doing today whatever you need to do today. It’s easy to fall into a hope of a magical future tomorrow where whatever stopped you from getting done today what you wanted to will no longer exist. But tomorrow is usually the same as today and yesterday. If today you were slowed down by a toothache or a broken arm, you will probably still have a toothache or a broken arm tomorrow, or at least injure yourself in some other way as you seem accident-prone. Or if today you were thrown off by some emergencies, you’re probably going to just get new emergencies tomorrow. Things tend to continue as they have.

Staying Away From Tomorrow-ism

Don’t fall into magical thinking. Be realistic about when and how you can complete the tasks that you need to complete, and what will stand in the way. Some things really are one-off circumstances and won’t repeat, but you need to be brutally honest with yourself about whether that’s really what you’re facing.

Being realistic about priorities will also allow you to make better judgments about what can be pushed off until tomorrow. If you are having trouble completing tasks because each day you have 29 “urgent” tasks and only get through five of them, then likely the 24 other weren’t really that urgent. If you find that you’ve pushed 10 of those items forward for three weeks, one day at a time, then those 10 items are really not urgent. In all those cases, the problem is one of proper priorities, and just not trying to do everything in one day would solve at least part of the problem.

Thus, if you do have to adjust priorities and put something off, be realistic about when it will get done. Allowing tasks to simply snowball from one day to the next won’t do anything except confuse your planning and waste time each day as you adjust all tasks. And when you do have to put something off, be realistic about when it needs to get done and will get done.

Also remember the difference between something that has to be done and something that has to be done by you. Very often the real issue with lingering tasks is that they’re best delegated. This folds back into prioritization: the time to realize a task should be delegated is when it comes up. If you decide to delegate only after having pushed the task off a day at a time for two weeks, then you’ve wasted a lot of time.

Get Started Today, Not Tomorrow

So get started today — not tomorrow — by properly setting your priorities and getting done today what needs to be done. The tomorrow you will thank you for it.

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Matthew W. Schmidt has represented and counseled clients at all stages of litigation and in numerous matters including insider trading, fiduciary duty, antitrust law, and civil RICO. He is a partner at the trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at matthew.w.schmidt@balestrierefariello.com.

It seems like every other day we see yet another proposal to dismantle, revoke, or otherwise undermine Section 230 of the Communications Decency Act. But doing so might actually create massive international problems. That’s because, as you may recall, despite some last minute attempts to remove it, the final USMCA retained language that suggests that any signatory to USMCA must have Section 230-like laws in place to protect intermediary liability. And, while it got surprisingly little attention, the USMCA went into effect last week. And thus, any change to Section 230 may raise at least some questions about whether or not they violate the agreement.

Now, there are limitations to this provision, but it’s interesting to see some people pulling their hair out that “big tech” has already blocked any possible changes to 230 via the USMCA:

But it’s hard to invest much energy in what the optimal Section 230 framework would be, since Big Tech has already solved this potential problem—in a way only they can love. Years ago, they succeeded in getting a Section 230-style provision into the reworked NAFTA, the U.S.-Mexico-Canada Agreement (USMCA). And practically everybody now incensed by the Section 230 legal immunity willingly voted to implement it in that trade agreement. That makes it much, much more difficult to change it in any way.

I find this framing fairly hilarious if you know anything about the history here. As detailed in the excellent book, Information Feudalism, it was actually the big legacy “intellectual property” industries, starting with the big pharmaceutical companies and followed quickly by Hollywood, that pushed to include things like copyright and patent rights in international trade agreements. As we’ve described, those industries have long focused on this form of policy laundering to get what they want.

Indeed, the DMCA itself wouldn’t exist without this process. As one of the architects of that law, Bruce Lehman, publicly admitted years ago in the 1990s, when Congress refused to create a DMCA-like law, he helped architect a plan to “run to Geneva” and get the 1996 WIPO Copyright Treaty signed, which “obligated” the US Congress to then create a DMCA-like law.

I have long found this whole process to be rather disgusting: leveraging backroom deals in trade agreements, that are negotiated out of sight of the public (or public interest organizations), with heavy input from industry, and then turning around and insisting that Congress must then abide by the restrictions in those agreements or face concerns that we’re not living up to our “international obligations” (the favorite phrase of those laundering policy in this manner).

It is all a big scam, of course, but since everyone else played that game in order to attack the internet, is it really any surprise that internet companies eventually sought the same sort of protections via trade agreements as well?

So, while the whole process of laundering policy this way is slimy and disgusting, there’s some level of ironic enjoyment in watching those now pushing for the undermining of Section 230 (which is often being driven by behind the scenes support from Hollywood), suddenly realizing that they now are facing the exact same game plan that they spent decades pulling against the internet.

Now That USMCA Is In Effect… Can Congress Even Reform Section 230 Without Violating The Agreement?

More Law-Related Stories From Techdirt:

L.A. Newspaper Sues Sheriff’s Department Over Its Repeated Refusal To Comply With The Law
U.S. Court Of Appeals Hears Arguments That Lawsuit Against Disney For ‘Pirates’ Shouldn’t Have Been Dismissed
Colorado Government Dumps Qualified Immunity For Cops

The president’s former lawyer Michael Cohen was taken back into federal custody yesterday after refusing to comply with the terms of his home confinement. When Cohen, who is preparing to publish a book about Donald Trump, refused to agree to a gag order on media contacts, he was abruptly shackled and returned to jail.

After the New York Post snapped photos of Cohen enjoying a leisurely dinner at a French restaurant this weekend, speculation was rampant that he’d be found in violation of his release. But as it turns out, his al fresco excursion wasn’t the issue.

The Wall Street Journal reports that Cohen and his lawyer Jeffrey Levine showed up at the courthouse to have his ankle bracelet fit and sign papers agreeing to the terms of his release, when Cohen balked at what he regarded as a violation of his First Amendment rights.

The very first clause of his Federal Program Monitoring Program Participation Agreement reads:

No engagement of any kind with the media, including print, tv, film, books, or any other form of media/news. Prohibition from all social media platforms. No posting on social media and a requirement that you communicate with friends and family to exercise discretion in not posting on your behalf or posting any information about you. The purpose is to avoid glamorizing or bringing publicity to your status as an inmate serving a custodial term in the community.

It’s unclear whether this is boilerplate language applied to all inmates released on home confinement, or this is a special proviso for former friends of Donald Trump who might say nasty things about him in the press. It certainly doesn’t look like any of the documents available on the Bureau of Prisons website, particularly the Home Confinement and Community Control Agreement and Conditions of Home Detention forms.

Nonetheless, Cohen was required to agree to stay off Twitter and not publish his book if he wanted to stay out of prison. When he balked, officials said they would try to work something out and left Cohen and Levine cooling their heels for 90 minutes. After which federal marshals came in and wordlessly took Cohen back into custody, according to his spokesman Lanny Davis. Cohen protested that he was willing to sign the form, gag order and all, but the officials insisted that it was “out of our hands.”

Which sounds suspiciously like Attorney General Bigfoot stomping all over one of President Trump’s many enemies. Barr admits to interfering in the prosecutions of both Roger Stone and Michael Flynn; he dispatched a crack team of investigators to scour the globe for evidence that actually it was Ukraine not Russia that hacked the 2016 election; he only gave up on trying to LOCK HER UP Hillary Clinton for email murders last October; and he just got caught redhanded trying to ratf*ck the U.S. Attorneys Office in the Southern District of New York.

It seems impossible that the Attorney General could have been so stupid as to use the conditions of home release to attempt to gag Michael Cohen and postpone publication of his book until after the election. On the other hand, we are talking about Bill Barr here, so …

Trump Lawyer Michael Cohen Sent Back to Prison [WSJ]

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

Is this a departure? To some degree yes. But, I think every firm now is trying to keep the wings on the plane while they’re flying it. There are a lot of attempts at innovation.

— Heidi Gardner, a lecturer on law at Harvard Law School who advises law firms, commenting on the fact that white-shoe Biglaw firms had used PPP funds to support their operations when the forgiveable loans were meant to support small businesses during the coronavirus crisis.

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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.

One of the themes of the social media reaction to the news that Colorado would ignore pleas to put off its July bar exam, or at least consider an online option, was the hope that the governor would intervene and slap stringent enough occupancy restrictions on the state — where infections are climbing daily — that the exam would have to be postponed.

We’ve all got to cling to our dreams, but I’m here to warn you all that it might not be enough.

Missouri imposed an occupancy cap limiting gatherings to fewer than 100 people. With only two originally planned locations — Columbia and Osage Beach — it seemed this would put a stop to the plan of stuffing 760 applicants and proctors into a bar exam. But don’t worry! The bar examiners asked for a waiver and got one because of the well-known “Lawyer” caveat to known epidemiological models. As bar examiners across the country will tell you, “If you went to law school, you’re immune to the coronavirus.”

Indeed.

Missouri had a rolling three-day average of 201 new cases a day a month ago. That figure today is 913. But they’ve got A PLAN!

Thank you for your email and for sharing your concerns. The organizers of the bar exam applied for and were approved for a waiver to accommodate more than the current gathering size limit of 100 people. In order for a business or organization to receive a waiver they have to demonstrate that they are able to maintain social distancing between all individuals for the entire event and have a strong disinfection plan, therefore limiting the risk for attendees. We encourage you and the other concerned law students to express your concerns to your event organizers if you haven’t already. They have a fairly robust plan for the event and would be able to share all the details with you.

To maintain recommended social distances of 6 feet, each person would require 113 sq. feet of space. Just fiddling on the back of an envelope here — the Holiday Inn Executive Center in Columbia, the planned site of that administration — boasts 19,000 square feet in its Expo center which should accommodate around 168 people. That seems well short of the approximately 380 the bar examiners plan to stick in there. The MBLE says they’ve secured additional locations to maintain the 6 feet requirement. Maybe they have. But recognize that they’ll have to have almost doubled their original plan to pull it off.

I’m incredulous.

And so are the applicants, who have written multiple letters seeking an alternative and filed a petition that at least two of the law school deans in the state have joined.

However, the Missouri bar examiners haven’t budged and instead have taken to LinkedIn to recruit even more proctors now that they’ve expanded locations:

I don’t know what happens after that screenshot but I’ve had a lot of fun imagining the next line. “I would offer to proctor myself, but law… requires me to stay 500 yards away from schools” or “I would offer to proctor myself, but law enforcement needs Batman to keep the schedule open.” What did this person do before he or she took an arrow in the knee?!? We will never know!!!

Canceling reservations at private venues is hard when the state government is no longer in lockdown mode. I get it. But sometimes those are the breaks and it’s better to suck it up than get people sick and rely on the questionably enforceable waiver the bar exams are asking graduates to sign. Discretion is the better part of valor, folks.

Or to put it in terms a law examiner might appreciate: just consider not inviting danger.

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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.

German payments company Wirecard appears to have just made up or otherwise invented $2 billion it pretended to have in the bank, along with some fake revenue for good measure. There’s not much good that can be said for $2 billion that isn’t there except in the minds of those under arrest or on the lam, but one thing that can be said of money that does not exist is that it cannot be laundered. The same, it seems, perhaps cannot be said for the actual money that at one time or another passed through Wirecard’s hands.

The COVID-19 surge in Colorado may be as devastating as the outbreak in neighboring (technically) Arizona, but the seven-day rolling average in new cases has doubled in less than a month. While the death toll in the state has, mercifully, remained low and ICUs are not presently overcrowded, we’ve already seen how quickly that can turn once infections begin to spike.

Faced with this, some graduates put together a petition boasting over 1,300 signatures begging for an alternative to the in-person July bar exam, offering emergency diploma privilege and a remote bar exam as possible options. Recognizing the threat to the safety of law school graduates, the Colorado Supreme Court flatly declined to take up the petition:

I know the mascot is the buffalo, but that doesn’t mean the state has to buffalo its prospective lawyers.

Earlier in the week, the bar examiners had amended the safety protocols, mandating that applicants wear masks throughout the exam — other states are attempting to provide enough social distancing to arguably allow masks to come off once seated — and reducing the occupancy at various testing sites, which will host between 36 and 122 people. Still, as University of Denver Law Professor Nancy Leong points out, “The conditions of the bar exam are IDEAL for a superspreader event.”

But they’re going to press onward and, at present, have not communicated any intention to adjust the cut score for applicants subjecting themselves to this circus. Which is interesting because…

Of course.

On Tuesday, hundreds of applicants registered their outrage when the attorney regulation counsel for the state’s high court was quoted in the Denver Post dismissing those calling for diploma privilege as “individuals who don’t want to take the bar exam.” For her part, she’s written Above the Law claiming to have been misquoted by the Denver Post, though declining in her email to state what she actually said. As of this writing, the Denver Post is still running with the quote as presented. We’ll let you know if that changes.

But, regardless of the precise quote, the message applicants took away from the story was that representatives of the state supreme court were openly hostile to their request. The decision to unceremoniously pass on the petition confirmed those fears.

The only equitable solution to this unfortunate episode comes from Willamette Law’s David Friedman:

Colorado’s justices are appointed by the governor but must stand in retention elections. Any justice that doesn’t show up and spend the whole test session in-person as a proctor should be roundly rejected at the ballot box next time up.

It’s the very least Colorado can do.

Earlier: Bar Exam Spokesperson Tells Newspaper That Folks Worried About Health Are Just Lazy
Colorado Accidentally Sent Out Bar Results, Said They Were Fake, But They Were Real

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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.

I know a lot of people are suffering from quarantine fatigue, but just because people want to be done with this whole pandemic thing, it doesn’t mean COVID-19 is done with us yet. And while the spike in coronavirus cases across the country is proof the virus is still a pandemic, the economic ramifications of the disease are still happening too.

Such is the case with Am Law 200 firm, Miller Canfield. Last month, the firm instituted some temporary furloughs of both attorneys and staff, as well as some lay offs. As firm CEO Michael McGee said:

In the wake of the economic slowdown caused by COVID-19, particularly in the auto sector, the firm was forced to implement firm-wide cost-cutting measures consistent with industry experience, including temporary furloughs and a few separations. Of the temporary furloughs, two were full-time attorneys, including one associate. Of the separations, one attorney was a principal and six were non-principals, including three associates.

If your firm or organization is slashing salaries, 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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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).