Category: News Feeds

Back in December of last year, the Justice Department’s Inspector General announced that they’d substantiated allegations that a senior official was a repeated sexual harasser. The official had retired at that point, and the allegations grew to include one of rape, and another woman reported she was pressured to have sex with the official to advance her career.

Now BuzzFeed News has obtained a (redacted) copy of the IG’s report and it reveals shocking details about what’s alleged to have gone on at Main Justice.

BuzzFeed had previously identified the senior official as Edison Aponte, and wouldn’t you know it, his job is very much at odds with an alleged repeated sexual harasser:

Aponte’s most recent title was associate deputy director in the Bureau of Justice Assistance, a section within the Office of Justice Programs that provides law enforcement training and grants — including, several sources noted, on issues related to victims of sexual assault and domestic violence.

“It boggles the mind,” said Jon Adler, who took over as the head of the Bureau of Justice Assistance in late 2017. By then, the inspector general’s investigation was underway and Aponte had been placed on leave.

Multiple women are cited in the IG’s report as complaining about Aponte’s behavior. One woman said Aponte engaged in sexually charged conversations with her, including asking about her favorite sexual position. She says she was pressured by Aponte to have sex with him to secure a promotion. Aponte denies this relationship. Another woman says she had a consensual relationship with Aponte, which the IG report still classifies as harassment as he was her supervisor. Two other women complained of inappropriate comments.

But the most shocking allegations come from a woman only identified as S.C. by BuzzFeed News. She said Aponte began harassing her with inappropriate comments and unwanted touching, including backrubs. She even says she put a mirror at her desk so he would be unable to sneak up on her and touch her. S.C. also alleges that Aponte raped her:

S.C. also told investigators that Aponte once sexually assaulted her. She said that Aponte followed her home after they had gone as part of a group to an unspecified sports event, and asked to come inside to use the bathroom and for a tour. According to the report, she said that when she rejected his attempts to touch her, he became “forceful” and “sexually assaulted her by having sexual intercourse with her.”

According to the report, Aponte denies he assaulted her, but instead says it was a consensual sexual relationship.

The BuzzFeed article also details the torturous process of trying to get the DOJ to do something about Aponte, and harassment in general. A process that was stymied by Aponte’s retirement. But for S.C., she told BuzzFeed she was unimpressed by the efforts:

She said she felt ignored and abandoned by department officials after she first reported being harassed by him in 2012. She’s still angry about how the department handled her situation, and said the fact that Aponte is gone and the inspector general made a public finding of wrongdoing wasn’t a satisfying resolution.

“What he did to those other people, management allowed to have happened — because they didn’t do anything when I went to them. They allowed that. They protected him and they allowed it,” she said.

In January, the DOJ announced a new “mandatory” sexual harassment training for all employees and plans on developing a more robust policy. To date, that has not happened.

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).

Before the Magic Circle, the elite UK legal landscape was a whole lot shadier. Back then, what moniker was used to describe Allen & Overy, Clifford Chance, Freshfields Bruckhaus Deringer, Herbert Smith, Linklaters, Lovells, Norton Rose, Slaughter and May, and Stephenson Harwood?

Hint: The name wasn’t the only suspicious thing either. The firms had an agreement not to poach from each other.

See the answer on the next page.

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Recognizing that a loved one needs a guardian can be a trying time. Taking steps to help the situation is painful and often destructive to the family unit. Not everyone agrees on next steps or who should take control. Sometimes, a medical diagnosis suggests cognitive impairment. Other times, one’s conduct indicates that she requires intervention. The standard for the appointment of a guardian or a conservator varies from state to state. Generally, one is appointed as a guardian when the individual’s functional limitations are so great that she is likely to suffer harm.

A personal guardian makes medical decisions. The guardian may decide treatment plans, choice of residence, and doctors. A financial guardian marshals assets, pays liabilities, budgets, applies for benefits, and can commences lawsuits in order to recoup monies which are owed to the individual. Often guardianships are born out of financial scams wherein individuals are taken advantage of and made to give or loan their money away.

Not every guardianship involves a grandmother with dementia or a bed-ridden senior citizen. For example, despite the fact that pop star Britney Spears has a conservatorship, she has continued to work, earn money, and raise her children. Often guardianships are tailored to allow the individual as much freedom as is safe in her particular instance. Guardianships and conservatorships apply to those with mental, emotional, and physical diagnoses when individuals exhibit behaviors that may cause harm to themselves. Sometimes people do not even have an official diagnosis.

As with Britney Spears, a guardianship proceeding may be commenced while someone is still working and participating in the community. Justice Laura Carter Higley is a 72-year-old judge in the First Court of Appeals in Houston, Texas. As she sits on the bench, her two adult sons have commenced a guardianship proceeding on her behalf in Harris County Probate Court 2. She was recently diagnosed with Alzheimer’s disease and they have alleged her failing cognitive health.

Her sons argue that since November 2017, the justice has suffered from neurocognitive issues. Justice Higley, who first took the bench in 2002,  drives herself to work daily in Houston. She has been involved in cases since March 2019, although no one has appealed her decisions since her diagnosis.

As in many guardianships, there exists a fight for control as the judge has an $8 million estate. Her husband, Bob Higley, is the mayor of West University Place, Texas, and he resides there with his wife. The sons are concerned about financial exploitation. Mayor Higley serves as the justice’s agent under a financial and medical power of attorney since March 2019. The sons also question their father’s actions with regard to the judge’s personal safety.

Complaints and concerns about Justice Higley could be made to the State Commission on Judicial Conduct, although it will not reveal if any have been filed as a result of their rules on privacy. The sons allege that their father has encouraged Justice Higley not to resign from her position.  According to the Texas Constitution, a judge can be removed from office in the event a disability interferes with her duties, which is or is likely to become permanent.

In many state jurisdictions, there is mandatory retirement for judges at a certain age. Such a rule often prematurely removes productive judges from the bench. Some of these judges then seek employment in the private sector. Justice Judith Kaye, the first woman to serve as the New York chief justice of the Court of Appeals, retired at age 70, due to the New York mandatory retirement statute. She then joined Skadden, Arps, Slate, Meagher & Flom as of counsel. Supreme Court and federal judges have lifetime appointments and many of these jurists have demonstrated monumental decisions during their “golden years.”

The case of Justice Higley highlights the fact that every guardianship matter is different. Individuals have different impairments, some of which can be hidden in the course of day-to-day activities. Some individuals may require assistance yet present well. Conversely, others may appear disheveled or in despair, but have a clear grasp on their lives. As practitioners and judges, we must look at the details and background of each case and make certain that the outcome specifically fits the facts. As is the concern with judicial mandatory retirement, not everyone ages the same way.

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. 

Just before Halloween, we asked our readers to submit their legally themed costumes to us for our annual contest. We got a great crop of entries, and we think you’re going to like them a lot — almost as much as President Trump likes saying NO COLLUSION NO QUID PRO QUO.

We’ve got 10 awesome finalists for you to choose from, and voting starts today. Who will be the winner of the tenth year of our competition?

First up, we’ve got Brett Kavanaugh — err… Bart O’Kavanaugh — and his infamous calendar. Woof.

Next, we have some law school fashionistas. We now present to you justices of the Supreme Court.

Coming to you straight from the ACC of Northeast Ohio, just try and pierce this corporate veil.

Here’s a reminder about the ghost of coverture. Let’s exorcise this one for good.

Keep reading to see some more costumes…

This post isn’t about sexual harassment, although the behavior I am talking about is harmful, and sexual harassment is a component of it.  And it isn’t about my current dean and associate dean, who I think are awesome.  In case you were wondering.

This post is how a mean boss can take your mental health away from you, even if the behavior doesn’t rise to the level of harassment.  And, this is a discussion of how one’s self-esteem and competence can be destroyed by a thousand cuts from such a boss.

Tales of senior partner abuse of associates run deep in the whispers of the legal profession.  Some tales extend generations.  The tales have common themes and characteristics.  It’s the boss who screams at you in front of others; questions whether you are competent to handle even basic tasks; takes credit for your efforts while knifing to your back with other partners; micromanages your every move; controls your time by religiously only sending you tasks when they hear the rattle of your keys as you are about to exit; gives you feedback that isn’t constructive, but rather is designed to question your competence and destroy your confidence; or watches you in the creepy “Every Breath you Take” kind of way to assure you are on task or not otherwise gaining support from others.  There are many ways for a boss to bully you, and there are many degrees of dysfunction in how a boss might treat you.

Research suggests that your level of competence doesn’t matter in terms of whether or not you experience workplace abuse.  You could be gloriously good or average and the abusive boss doesn’t discriminate, although the reason for the abuse might be different.  For the average, it might be the abusive boss’s frustration about your perceived level of competence.  For the gloriously gifted, it might be because the abusive boss feels threatened.

And there is a lot of advice out there about dealing with abusive bosses.  Much of it bad, and in the form of “suck it up.” Work harder.  Maybe try being super nice to the bullying boss.  Those of us who have dealt with bullies as a kid know how well that advice works.

There is literature that suggests that fighting back will make things worse, while trying to kill the bullying with kindness won’t help. If you lash out at your bulling boss, you might catch more hell.  But abusive bosses didn’t respond to their employees being nice or empathetic either, according to research.  Thus, one can be trapped in a cycle of abuse at work, just as there are cycles of abuse in other relationships.

Being abused by a boss can affect your mental AND physical health.  The headaches, the ulcers, the exhaustion, the panic attacks, the sleepless nights, the dread as you enter work in the morning, the dread every time you check your emails, the dread when your phone rings, the potential to abuse drugs and alcohol to escape the abuse, and the questioning every decision in your life.  The cycle of abuse leads to more abuse.  As you deteriorate, you make yourself more a target for the abuse.

Law firms are starting to take employee mental health seriously.  They recognize the potential such issues might have on their bottom line.  There are workshops and other measures designed to ease the frustration of law firm life.  But I couldn’t seem to find an article that says “law firm takes bullying seriously!”  So, for many, it’s like saying to someone who has been repeatedly yelled at to have a massage between screams.

So, what can be done?  Sadly, I don’t have the answers.  Well, I do, but telling law firms to stop abusive partners from being abusive is not likely to gain traction.  And many who are in this field don’t think that law firms are willing to give up the cycle of abuse.  Firms priding themselves on lawyers willing to work long hours and sacrifice their bodies and minds to the cause means that firms don’t pride themselves on having lawyers who are happy and more productive because of it.

That’s a problem.  And at the moment, it’s a problem without a solution.

There is an old saying in psychology:  The person who broke you cannot fix you.

This is the fatal flaw of the abusive boss.  It’s also the fatal flaw in relying on law firms to fix this problem.

LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here. He is way funnier on social media, he claims. Please follow him on Twitter (@lawprofblawg) or Facebook. Email him at lawprofblawg@gmail.com.

When I started school I was told by the dean of the school that ‘law school is a marathon, not a sprint.’ I took that statement to heart and am now finishing my last year with a marathon, proving that you can push your mind and body to the limit.

— Michael Millus, a third-year student at Brooklyn Law School, in comments given after completing the New York City Marathon this past weekend. “I started running two years ago to unwind and get my mind off the pressure and stress that comes from law school,” Millus said. Prior to running the NYC Marathon, he’d run three half-marathons, and he clocked in with a time of 3 hours, 45 minutes, 33 seconds for his first marathon. Congratulations!

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.

Back in 2012, we wrote a story about Jennifer Kash, a Quinn Emanuel partner who sent around an email asking her associates to let her know their availability for more work. That’s not an uncommon ask in the Biglaw universe, but the takeaway from Kash’s email was that any associate billing under 2400 hours/year was still open to more work in the firm’s estimation:

In case you forgot: 5 is crazy busy, 4 is could do something but it would hurt and would have to be very small, 3 is you have some bandwidth and might be able to take on some more work, 2 is I could take on a bunch more work, my plate is not full, 1 is you need lots of work.

One further note, based on how busy everyone is if billing under 200 hours a month you are a 3.

At the time, we described Kash’s email as emblematic of the way firms see associates as consistently underutilized — a mindset that can level undue stress and potential burnout.

Today, Jennifer Kash would likely agree with that assessment. While associates working 2400+ and still getting assigned more work may sound miserable, Kash was billing 3500 hours at the time and only making due with healthy doses of Adderall. It’s easy to think of law firms as pyramid schemes because, in a sense, they are. But just because the associates grinding out hours at the base are whittled down to the partnership tier doesn’t mean the partners have stopped billing themselves. Many partners are juggling as much or more.

The former Quinn Emanuel San Francisco office chief is now living in the Caribbean running a non-profit called Virgin Independence, which helps transitional youth in finding jobs and training and working on a new program that invites attorneys to join her in St. Vincent and the Grenadines to get the support that lawyers rarely get while trying to manage their schedules.

The Lawyer’s Escape Pod is an excellent podcast hosted by Megan Smiley that peeks outside the legal industry to show lawyers that there is, in fact, an escape route. Smiley posted an interview with Kash where she opened up about her worldview as a partner and how she went from Biglaw big wig to living in the islands.

On the show, she describes the isolation that can form around partners in the Biglaw system:

Law firm system not set up to support people at the top. Because we so assume once they get there and they have money and they’ve made it through the ranks of associates that there’s no longer going to be problems they need to address and there is. And the problem is there’s no place to go and no resources available to them because they don’t have any confidentiality and they need support in a way that’s embarrassing and that they’re not willing to maybe sometimes let their egos be set aside to address.

It’s a great way to close the loop on the article we posted seven years ago — time has a way of changing perspectives. Jennifer Kash wants lawyers to understand that taking care of themselves isn’t something they can just put off because the money’s good.

Earlier: How Many Billable Hours Do You Have to Work Before You Are ‘Busy’?

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.

For better or worse, Biglaw is more of a business than it ever has been. It’s no longer the case that you join a firm after law school, work hard and make partner, and remain at the firm until you retire or die. Instead, partners regularly part ways with their longtime firms, in search of better platforms — and bigger paychecks.

In this environment, it’s more important than ever for lawyers — and not just partners, but counsel and associates as well — to understand and excel at business development and marketing. If you want a long and successful career at a law firm, you need to be not just an excellent attorney, but also a talented marketer.

How can you become a Biglaw business-development whiz? It’s not easy; many major rainmakers will tell you that it took them years to master the art. But you can definitely give yourself a head start through reading and research.

My recommendation: Start with Best Practices in Law Firm Business Development and Marketing by Deborah Farone, published earlier this year by the Practising Law Institute (PLI). Farone, the founder of the Farone Advisors consultancy and former chief marketing officer at two of the nation’s finest firms, Cravath and Debevoise, interviewed numerous Biglaw business generators, as well as other industry experts, to learn the secrets of their success.

I recently spoke with Deborah Farone about her book and about Biglaw business development more generally. Here’s a (lightly edited and condensed) write-up of our conversation.

DL: What inspired you to write the book?

DF: I felt that there was a real need in the marketplace to study the best practices in business development. I knew there was keen interest in two related subjects: One was in learning what it was that certain law firms were doing to consistently drive profitability and foster a positive culture, and the other was the curiosity about the habits of great rainmakers.

Around this same time, as I was thinking about starting a consulting practice, I was approached by PLI to write a book on legal marketing. Although I knew a lot about the world of large law firms and their operations, I always wanted to learn about best practices and innovation in other sectors of the legal profession, including midsize firms and boutiques. Conducting the research with academics, technologists, and other thought leaders and writing a book was an ideal opportunity to do this.

DL: As I know from my own experience, writing a book is a challenging and demanding endeavor. What did you think of the process?

DF: I gave myself a year to write it and I finished within that year. I mapped out a series of deadlines and devoted every morning from 6 to 11 to work on the book, assuming I wasn’t traveling to a client’s office. I interviewed more than 60 people for the book, so it involved a lot of juggling of schedules. I had to attack it in a very organized and disciplined way to complete the project.

DL: Your book isn’t just a primer on business development, but it’s also a portrait of Biglaw over time. I love the opening, where you paint a vivid picture of what Debevoise was like back in 1989. What would you identify as the single biggest change in this world over the past three decades?

DF: One big change that reverberates throughout many parts of the profession is that general counsel are in the driver’s seat more than ever before. Compared to their predecessors, today’s GCs are very sophisticated consumers of legal services, command larger departments, and have more tools at their disposal. In the past, if the GC had a new legal problem, they’d immediately look to their outside law firm. Today, they might turn to hiring additional lawyers in-house at a lower cost or using an alternative legal services provider. They’ve also acquired technology to address reoccuring issues and, as we’ve seen by the rise in influence of CLOC, brainy experts in legal operations are also there to help protect the company and manage legal costs.

DL: What ramifications does this have for legal marketing?

DF: When marketing their services, firms need to ask themselves: are we doing something that adds value? Are we providing a service that a GC can’t simply do in-house? This thinking requires law firms to be more strategic in their offerings and in their branding. It is why many more firms are developing strategic plans for key practices or for entire firms. They are working to identify the areas where they can provide exceptional value and differentiate themselves from the firm down the street.

DL: Have law firms risen to the challenge? Have they gotten better at business development and marketing?

DF: Some have. In the book, I focus on innovative firms — firms like Orrick and Gunderson Dettmer, to name a few — and what they’re doing to succeed in business development. Marketing has to be involved, of course, but so does management. The focus needs to be all hands on deck, focusing on the client.

Deborah Brightman Farone (courtesy of the author)

DL: Based on your research, can you offer some advice on how Biglaw partners can work most effectively with their Chief Marketing Officers and marketing teams?

DF: Marketing can’t be a back-office department that works somewhere in the Ozarks. Marketing folks need to be involved in the strategic direction of the firm. For example, when a firm hires a lateral partner, the marketing department should have a hand in everything from helping to think about how the lateral will fit into the business, what services they will bring to clients, and what the firm can do to ensure there is support for the lateral to succeed in their practice. The CMOs I’ve met are incredibly talented, but at times they’re under-utilized by their firms when it comes to their strategic capability.

Firm leadership needs to be in regular communication with their marketing group to let them know not only the state of the firm and what is transpiring, but to communicate that their work is central to the operations of the firm. At Cravath, both Evan Chesler and Allen Parker met with my department regularly to let us know about new opportunities and their goals for the firm. This conveyed to the marketing department that they were an integral part of the firm and on the same team as the lawyers.

DL: You mentioned integrating lateral partners, a subject of great interest to me these days. Have firms gotten better about this process?

DF: Again, some have, and some haven’t. Today, many have a well-run integration program set up well before the partner even accepts the offer. They are thinking: Which clients will potentially use this partner? To which clients should the new partner be introduced, and by whom? Firms shouldn’t just count on lateral partners spinning gold from their own contacts when they arrive. If firms truly collaborate with new partners, the new partners are much more likely to stick. Close to 50 percent of lateral partners end up leaving the firm after five years. It’s expensive to bring on a lateral, so it behooves the firms to think seriously about how the partner will fit into the firm culture and business.

DL: Speaking of law firm culture, how does it affect marketing and business development?

DF: Firm leaders are so busy that they don’t always have time to stop and think about culture as a vital factor in the firm’s success, but if you think about it, culture is often the reason that firms maintain clients and talent, and grow revenue. If you have a culture where partners genuinely like each other, collaborate on bringing in new matters and serving their clients, you’ll have a much more robust business.

Dr. Heidi Gardner of Harvard has demonstrated this in her research. She found that if a client is served by more than one practice, there’s more of a chance of what she calls “stickiness,” and the firm is much more likely to retain the client. This requires a culture where partners like working with each other and have a compensation system that rewards this type of behavior. If you don’t pay attention to culture and just “let things happen,” you lose an opportunity to develop a stronger firm.

DL: Turning to associates, I personally think it’s good for them to start thinking about and understanding, early in their careers, how the business of Biglaw works (and Above the Law aims to help on this front). Do you have any recommendations for associates on what they can do in terms of BD?

DF: I agree. It’s never too early to start thinking about how you’re going to develop a practice, whether you’re planning to stay at your current firm or head someplace else. And that means building relationships. Associates need to work within the paradigm and rules of their own firms, but there are steps most can take.

Foremost, associates should develop relationships amongst themselves — their officemate might be a GC someday — and outside of the firm as well. This might involve using LinkedIn to stay in touch with business contacts, getting involved in leadership roles within bar associations, or serving on the board of a nonprofit in which you have an interest. I was on the board of the Girl Scouts of Greater New York for many years and from that experience, I met a host of people in various areas of business and industries, including banking and pharmaceuticals, who I would not have necessarily met in my marketing role.

DL: And what can firms do to encourage and support their associates in these efforts?

DF: Many firms provide forums for their associates to get to know colleagues at their level at the client, whether through substantive legal work or social activities. Some give associates a budget to take the client to lunch or an event. This helps create a “zippering effect,” where the firm has contact with the client at all different levels, and it also allows the associate to develop their business development skill.

Firms often tell associates, “Your job is to learn to be a great lawyer.” I agree, but I don’t think this is mutually exclusive with teaching them client and business development skills. If you don’t give associates training and exposure in business development and client service, you end up with a class of partners that has never done it before. Then you are in a position of having to train folks to acquire new habits and break old ones. The new partners have also missed out on years of making valuable connections.

I have been to a number of firms to speak with partners and senior associates. They want to learn how to develop business and they are interested in knowing how others in the profession do this. Lawyers tend to look for precedent, and I think by providing examples of behavior that has worked elsewhere, they are able to think about and incorporate what will work for them,

DL: What about business development and diversity? How do these concerns relate to each other?

DF: Of course, business development isn’t just an issue for diverse lawyers, it’s an issue for everyone. Firms should give everyone they tools they need for business development. We need to be sure that we are reaching everyone and spend extra time with those who need it most, regardless of their background.

Marketers can play a role in the conversation in terms of making sure firms recruit diverse candidates and retain and develop diverse lawyers. Firms are starting to track to see that diverse lawyers are being given the same assignments as everyone else. Firms need to ensure that diverse lawyers have the skills and exposure they need to develop their practices.

DL: Looking to the future, how will technology and innovation affect marketing and business development?

DF: Today’s legal technology is amazing, and there are wonderful tools that streamline processes that used to take lawyers a lot of time. Firms can provide equal if not better service in a more cost-effective way. Marketers can spend less time putting together reports and regression analyses and more time involved in strategic projects.

But the relationship aspect of doing business is still so vital. People want to work with people they like and trust. If the client doesn’t trust you, the innovative George Jetson environment you’ve created doesn’t matter. Skills, reputation and relationships are really everything in business.

DL: So very true. Congratulations again on the book, Deborah, and thanks for taking the time to share your insights and advice!

Best Practices in Law Firm Business Development and Marketing [Amazon (affiliate link)]

Earlier:

David Lat, the founding editor of Above the Law, is a writer, speaker, and legal recruiter at Lateral Link, where he is a managing director in the New York office. David’s book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. David previously worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@laterallink.com.