Category: News Feeds

Duane Morris partner Doreen Zankowski has been suspended for six months from the Massachusetts bar for overbilling while she was a partner at Saul Ewing Arnstein & Lehr. Zankowski, a litigator who handles complex litigation, construction and corporate matters, said that her billing errors were not intentional but merely a result of “inadequate, careless, rushed and error-prone” billing practices.

In question were Zankowski’s billable hours for 2015. That year she made equity partner at Saul Ewing, and billed 3,173 hours and worked more than 720 non-billable hours. The ethics opinion notes the firm became concerned with Zankowski’s hours during compensation review:

“The litigation department chair was struck by what he described as the respondent’s ‘extraordinary billable numbers,’ as well as a ‘premium’ in earnings resulting from the fact that the respondent’s overall actual amount billed was more than the original value entered.”

She also reportedly edited associates’ timesheets to add entries to associate level work that Zankowski says she actually did herself. Zankowski left Saul Ewing in 2016 and joined Duane Morris, but as reported by Law.com, that didn’t end the investigation into her billing practices:

Saul Ewing continued to investigate her billing practices after her departure and ultimately gave money back to clients, totaling about $260,000, for what it believed was the amount Zankowski had overbilled, the opinion said. The firm did not inform those clients about the reason for overbilling, and most of them ultimately followed Zankowski to Duane Morris, the opinion said.

According to the ethics opinion, Zankowski “falsely inflated the number of hours on final bills sent to several clients, improperly entered her time as work by her associates, and knowingly billed clients for taking depositions that she did not attend.” And though the board of bar overseers recommended a two-year suspension, Associate Justice Frank Gaziano felt that was “too severe” and knocked it down to six months, beginning on December 18th. In justifying the shorter suspension, Gaziano also noted even absent the billing irregularities, Zankowski was a significant revenue generator and that her evidence that the overbilling was unintentional was compelling.

Zankowski is appealing her suspension, and Saul Ewing indicated they have no comment while the appeal is pending. Duane Morris offered this statement:

“As this matter has been appealed by the Massachusetts Board of Bar Overseers, the firm has no comment other than to note that the conduct at issue, which involved certain billing practices, all occurred entirely prior to Ms. Zankowski joining Duane Morris and that two of the three clients in question had actually presented testimony in support of Ms. Zankowski.”

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

The holiday season is an opportune time to think not just about Biglaw bonuses, Christmas parties, and vacations, but also about the less fortunate. It’s a time to be thankful for our blessings, but also to share those blessings with others.

So it’s appropriate that this time every year is when we learn about the latest class of Skadden Fellows. As we’ve explained in the past, these prestigious fellowships, “the public-interest world’s version of Supreme Court clerkships or Rhodes Scholarships,” allow their recipients to pursue public interest work on a full-time basis for two years.

Skadden Arps started the program in 1988 to commemorate its 40th anniversary as a law firm, and in honor of the firm’s 70th anniversary in 2018, it extended the program for another decade. According to Kathleen Rubenstein, who took over as executive director of the Skadden Foundation earlier this year from longtime executive director Susan Butler Plum, this latest crop of 28 new fellows will take the total number of fellows to 877 in just over three decades.

When I spoke with Plum last year about the selection process for fellows and their projects, she told me, “We try to stay away from what’s sexy and what’s hot. We focus on the work. Nobody knows what the clients need better than the applicants, because they’ve worked closely with the agencies in developing their proposed projects.”

That said, there’s no denying that the fellows and their projects will reflect current events to some degree. So it should come as no surprise that several of the new fellows will be focusing their work on immigration and on serving immigrant communities. In a piece about the new Skadden Fellows for Big Law Business, Elizabeth Olson shines the spotlight on two such fellows — Juan Bedoya of NYU Law School and Iva Velickovic of Yale Law School — both the children of immigrants themselves.

Congratulations to Bedoya, Velickovic, and the 26 other deserving recipients and thank you for the work that you already have done — and will do, as Skadden Fellows — in service of the public interest.

(Flip to the next page for the complete list of the 2020 Skadden Fellows, as well as a list of which law schools have produced the most Skadden Fellows over the years.)

Predictive coding is a technology that is frequently suggested as a way to empower attorneys to focus their time on electronically stored information (“ESI”) that is relevant to the claims and defenses of their case, from the investigation stage of a lawsuit to responding to discovery requests. What is sometimes mysterious to those receiving these suggestions, however, is how predictive coding actually works or how it can be used effectively in a case.

What if there were something out there to help empower lawyers to meet their discovery obligations while saving time and money? Everlaw is proud to present an overview of predictive coding along with strategies on how you can use it during litigation.

Click here to download the white paper to learn more about how you can use predictive coding to your advantage.

I’ve always called myself Republican. I keep my Twitter feed generally apolitical & will continue to do so. Generally. But as of today, I’m switching parties. Over impeachment. The Republican positions aren’t consonant with intellectual honesty. As of today, I’m an Independent.

—Bryan A. Garner, editor-in-chief of Black’s Law Dictionary and frequent writing partner of the late Justice Scalia, recently decided to quit the Republican party over impeachment.

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).

As the world awaits the premier of “Star Wars: The Rise of Skywalker” we are reminded once again of one of the franchise’s enduring themes: the replacement of human beings by technology and robots. Whether or not the “Star Wars” droids replace or assist people, it is clear that technology’s integration into society, in a galaxy however far away, speaks to our collective, cultural trajectory.

Technology has crept its way into the legal world in many, often helpful ways. In many jurisdictions, tomes of land records are available online and may be located with a few clicks. Contracts can be electronically signed. Closings happen remotely. At an even more basic level, word processing and computers have made writing agreements and other legal documents immeasurably more efficient. Typewriters and dictation machines are mostly a thing of the past. Similarly, electronic legal research has made writing briefs less painful.

Trusts and Estates is a field of law wherein technology has not yet completely taken over. While several jurisdictions accept electronic filing of probate documents with the Court, the electronic signing of last wills and testaments is not universally accepted. In fact, the idea is often met with wariness.

When signing a last will and testament, depending on the state, the execution ceremony includes a testator’s series of statements indicating to the attesting witnesses that one is able to converse in the English language, one does not suffer from any incapacity and one is not under undue influence. The reason for the recitation is not only to confirm one’s testamentary wishes, but to dissuade future individuals from contesting the document. The witnesses, at least two people in the same room as the testator, often sign an affidavit, before a notary, attesting to the testator’s capacity and general disposition during the signing. Many practitioners make it a point that the testator, witnesses, and notary all use the same pen, so as to demonstrate that all were around the same table at the same time.

In recent years, there has been a movement to depend less on attorneys and the in-person executions traditionally associated with a last will signing in favor of an electronic ceremony. The Uniform Law Commission — a nonprofit association — has established the Uniform Electronic Wills Act, which  endorses the execution of electronic wills. Seemingly the impetus for recognizing electronic wills instead of written ones is to make execution of the document more affordable, accessible, and easy. Many avoid executing this important document because of price, time and inconvenience. Although software programs have existed for years to assist in writing one’s own last will, new electronic will legislation allows a testator to execute the document using an online notary, witnesses who may not be present in the same location, and encrypted technology.

As a practitioner who sees abuse among the elderly and impaired in the form of undue influence and diminished capacity, executing last wills in front of a computer screen without any attorney oversight is concerning. Having an attorney supervise the process from initial consultation to will execution insures that the true intent of the testator is relayed in the testamentary document. There is a reason why many jurisdictions hold a presumption that a last will and testament supervised by an attorney is duly executed. There is a reason why attorneys follow a specific ritual when supervising the execution of a last will. Further there are reasons why attorneys keep copious notes about meetings with clients. While attorney-supervised wills can be contested, a will executed without an attorney involved is certainly worthy of additional scrutiny. For younger clients, the concerns may be different. Estate planning attorneys are trained to ask pertinent and specific questions that self-drafting programs  may not address, such as children with special needs, disinheritance, tax, and contingency clauses.

The State of Florida’s electronic will statute takes effect on January 1, 2020. According to the Florida statute, the online notary asks the testator the prescribed questions that an attorney in-person would inquire, including, who is present in the room, whether the testator is under the influence of alcohol or drugs, and whether the testator is being unduly influenced. The notary electronically notarizes the last will and corresponding record.

This new law is not without concern. In 2017, former Gov. Rick Scott vetoed a prior bill authorizing electronic wills because of concern as to the safety of the testator as compared to convenience. In this instant law, a provision disallows vulnerable adults as defined in F.S. 415.102, to electronically execute a will. Postmortem litigation as to whether a testator was a “vulnerable” person under the law is likely to ensue.

As with any industry, the introduction of technology can cause some fear, anxiety and maybe even confusion. As practitioners, our challenge is to cautiously explore new ideas and act efficiently for our clients, all while zealously advocating for them. These are lessons we learn from Star Wars as Princess Leia pleads to her human advisor, “Help me, Obi-Wan Kenobi. You’re my only hope,” albeit through the holographic technology of a droid, R2-D2.

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 when you thought it was safe to stream porn to your computer and make your clerks watch, a new lawsuit might give you pause if decency and common sense hadn’t already.

When Judge Alex Kozinski bolted from the federal bench just in time to put an end to any inquiry into allegations of decades of sexual misconduct, it looked like the end of it. Like the Duke boys crossing the county line, retiring from the federal bench offers complete and total protection from the long arm of justice. Kozinski’s strategy was so elegant, the Third Circuit’s Maryanne Trump Barry pulled the exact same move once the New York Times started looking into the creative approach she and her brother took with the IRS.

His fall from grace didn’t last all that long, with a rehabilitation tour starting roughly a year after he left the bench. He got invited to fancy law parties again, and even got back into the Ninth Circuit, this time as an advocate.

A new lawsuit seeks to turn back the page on Kozinski’s second act to the unresolved matters of the first. The long, twisted road that led to Kozinski’s resignation is dotted with appearances by attorney Cyrus Sanai, a litigant who Kozinski attempted to publicly embarrass in an op-ed, prompting Sanai to engage in research that led him to discover Kozinski’s porn stash. Sanai’s first misconduct complaints were brushed aside until the Los Angeles Times published a story about Kozinski’s files prompting the judge to file a misconduct claim against himself, staying Sanai’s most recent complaint at the time and sending the investigation to the Third Circuit. After the Third Circuit cleared Kozinski, the Ninth Circuit censured Sanai for bringing his complaint and referred the matter to the State Bar. A judge later dismissed most of the State Bar claims. After Kozinski was embroiled in the Me Too claims brought to light in the Washington Post, Sanai filed a motion to vacate the censure — it was never addressed.

Yesterday, Sanai filed a lawsuit against Kozinski, as well as the judges and court personnel that he alleges provided succor to Kozinski throughout this ordeal. In a nutshell, he argues the censure and efforts to disbar him remain palpable damages and that Kozinski’s resignation cannot shield Kozinski from responsibility for those harms.

As for Kozinski’s supporting cast, Sanai argues that the Judicial Council doesn’t even have the authority to issue a censure or sanction of any kind and wants those efforts condemned as abuses of power.

In a statement to The Recorder, Sanai explained that the monetary damages he seeks, while important, aren’t really his biggest concern. What he wants to see is serious reform to avoid abuses like these from occurring in the future.

And, of course, an end to the rehabilitation tour. “Kozinski needs to be removed as a lawyer. He’s a danger to due process.”

Regardless of the ultimate success of Sanai’s claims, it’s worth taking pause to realize that we have a judiciary set up to essentially bar clerks alleging harassment from having their harasser investigated and requiring a man who just happened to stumble upon the server at the heart of those claims to bring the complaint. He may have brought his initial complaints for wholly different reasons, but right now, Cyrus Sanai is an accidental proxy for a number of former clerks. It’s a responsibility he seems more than willing to shoulder.

(Read the full complaint on the next page…)

Earlier: The Biglaw Firm Taking Disgraced Former Judge Kozinski To Dinner
Disgraced Former Judge Alex Kozinski’s Rehabilitation Tour Continues With Oral Argument
The Rehabilitation Of Disgraced Judge Kozinski Has Begun
Breaking: Judge Kozinski Is Retiring Effective Immediately
More (Yes, More) Allegations Against Judge Kozinski. Reading Them Will Make You Feel Gross.
Maryanne Trump Barry Pulled A Kozinski
Above The Law’s Dangerous Love Of Federal Judges

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.

The holiday gifting season is upon us. As any parent of young children knows, it seems that each year brings with it the must-have toy of the season, as with the hoverboard craze of a few years ago, or the Tickle Me Elmo mania that gripped the country back in 1996. In this age of mobile phones and third-party selling on platforms on Amazon, it is not hard to imagine that a phenomenon like Tickle Me Elmo would be hypercharged in the current environment, even as online shopping would provide less fodder for newscasts hoping to run video of hysterical parents storming the doors of the local Target at some ungodly hour on Black Friday. While I can’t claim to know what the hit toy or toys of 2019 will be, I can certainly bet with confidence that at least some of them will be imported from countries such as China. Along with a host of counterfeit or “replica” items that may not be exact copies but are perhaps good enough to pass muster with an overtired 4-year old at a busy Christmas or Hanukkah party. Until they get teased for having a “weird” one when they show the knockoff to a friend.

As is the case with all profitable items, the brand owners importing this season’s hot toys have an interest in policing infringing or counterfeit goods using whatever tools they have at their disposal. Due to the compressed nature of the holiday shopping season, however, traditional legal avenues like lawsuits or letter-writing campaigns are not promising in terms of delivering results that can help keep an original brand owner as the only source of the hit item. Especially in this age of overnight knockoffs and online direct-to-customer express ordering and shipping.

In short, brand owners looking to maximize their profits from a short-lived hit item (as well as brand owners who sell perennially popular items year-round) have an interest in getting more immediate results when they attempt to enforce their intellectual property rights. Particularly where the prime sell-through life of the product will have passed in the amount of time it would take just to get to an initial conference in a filed lawsuit, for example.

Complicating matters for brand owners is that much of the manufacturing of infringing and counterfeit items originates overseas. In some cases, third-party sellers from overseas try and sell those products directly to U.S. consumers through online platforms such as Amazon. In those situations, brand owners are reliant on Amazon’s existing mechanisms to help stem the tide of infringing products. As I have written previously, Amazon’s processes are pretty favorable for brand owners when it comes to taking down products listings for (blatant) trademark or copyright infringement, whereas trying to enlist Amazon’s help enforcing a utility patent can be a more quixotic experience. At the same time, we have had success for clients that own design patents in having infringing listings taken down quickly by Amazon, if only because design patent infringement analysis is (wrongly) considered relatively simple. Just compare and if it looks the same, there is infringement. (In fact, determining design patent infringement is a much more involved process, as has been noted by leading authorities like Sarah Burstein, who I have had the pleasure of interviewing on these pages. More on that below.)

For design patent owners, having the ability to easily police infringing goods on Amazon and other online marketplaces is great. But trying to enlist the help of Customs and Border Protection (CBP) to stop design-patent infringing goods from being imported has long proven a stiffer challenge. In fact, the only existing way to do so is to obtain an ITC exclusion order, an expensive and arduous legal process that is simply incompatible with stopping the fast-moving infringement that plagues hit holiday-toy makers.

Recently, however, a number of senators have introduced the Counterfeit Goods Seizure Act of 2019, which aims to empower CBP to police design patent infringement by allowing CBP to stop imports of infringing products without the need for an ITC exclusion order. In effect, just like CBP personnel can stop importation of a product that infringes on a trademark or copyright, so would they be able to likewise determine whether a product infringes a design patent and stop importation of that product. For brand owners that own both trademarks and design patents around hit products, this legislation, if passed, would be a boon, freeing them from the need to first undergo an expensive legal proceeding to enlist CBP help. It would also help squeeze out bad actors who get around CBP’s existing IP policing mechanisms by importing products without the counterfeit (or trademark infringing) labels, only to attach them in the U.S. post-Customs release. Considering the benefits to IP owners, it is not a surprise to see a coalition of brands (e.g., Nike — which has struggled in the ITC in the past) and IP-owner organizations such as the IPO supporting the bill.

While empowering CBP to enforce design patents may seem like an excellent way to help stem the tide of counterfeit products into the U.S., it does not come without risk. Great care would be needed to avoid gaming of the system by design patent owners, in terms of having CBP adjudicate infringement against competitors without the legal protections afforded by an ITC or District Court case. Similarly, determining design patent infringement is not as simple as it may seem, particularly with the ever-changing legal developments that are rife within every IP field. That said, perhaps there are ways to pilot some kind of CBP-based design patent enforcement mechanism that will balance out the due process risks with the important goal of stopping counterfeit and infringing products from harming U.S. IP owners. We can hope that Congress will look carefully at how design patent infringement determinations are made both in court and in private fora like Amazon for guidance on how best to involve CBP in a similar endeavor. Ultimately, we can hope that legislative process yields a positive result on this issue. If only because hit toys deserve secure borders, so that no kid is disappointed with a cheap knockoff.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

You had to know that no judge was was going to be happy that a litigant appearing in their court was getting internet-famous for the insults he hurled at opposing counsel.

For the maybe two people in the legal world that somehow missed the exploits of Christopher Hook, a plaintiffs’ lawyer in California, let me catch you up. Hook is squaring off against a legal team at Sheppard Mullin, led by partner Peter Klee, in an insurance dispute over about $200,000. But Hook’s bold language in settlement negotiations made him an Above the Law star. Hook’s bon mots include “eat a bowl of dicks,” “let the long dick of the law f*ck [your client],” “cumstain,” and  “limp dick mother f*cker.” From Klee’s declaration in support of a motion for sanctions:

Now that we’ve got that fun refresher done, we can focus on the latest development. Yesterday there was a hearing in the case, and U.S. District Judge Otis Wright II of the Central District of California told Hook bluntly, “You just trashed your profession.” He went on to demand Hook resign from the profession, as reported by Law.com:

Wright, a former deputy sheriff in Los Angeles County and a U.S. Marine Corps veteran, told Hook he had acted “like a gangster.”

“Tell you what, slick, this profession does not need you,” the judge said. “I am going to do what I can to remove you from this profession.”

He then asked Hook to resign.

“I will not do that,” Hook responded, prompting Wright to interject.

“Shut up,” the judge said. “I want you to resign from this profession.”

Judge Wright also took issue with Hook’s assertion that his emails were protected by the First Amendment and the litigation privilege:

“You honestly believe the First Amendment extends to anything?” Wright replied. “You did go to law school, right?”

As you might imagine, Wright ordered Hook to pay fees and costs:

At the end of the hearing, the judge told Sheppard Mullin’s lawyers to submit the fees and costs they want from Hook. Hook said he would agree to pay them.

“You’re going to pay for this,” the judge told Hook. “You’re going to write a check. That’s just the first thing. This is not going to be over.”

As he left the courtroom, Hook reportedly apologized for his actions, but it just might be too little too late.

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).