Category: News Feeds

UPDATED: Adds Microsoft & expert comments

WASHINGTON: In the latest twist in the JEDI cloud computing saga, the Pentagon’s Inspector General has released a report that’s as remarkable for what it leaves out as what it says. The IG tried to determine whether President Trump’s public attacks on Amazon led White House officials to sway the Pentagon process in favor of rival Microsoft, as Amazon claims. But the Defense Department’s own lawyers instructed witnesses not to answer the IG’s question lest they violate “presidential communications privilege.”

The good news for the Defense Department? After interviewing more than 80 officials and reviewing over 33 gigabytes of documents, “our review … concluded that the DoD’s decision to award the JEDI Cloud contract to a single contractor was consistent with applicable law and acquisition standards,” says the report released this morning. “We do not draw a conclusion regarding whether the DoD appropriately awarded the JEDI Cloud contract to Microsoft rather than Amazon Web Services [because] we did not assess the merits of the contractors’ proposals or DoD’s technical or price evaluations.”

A Pentagon spokesman was quick to hail the report – and slam the media. “The Inspector’s General final report on the JEDI Cloud procurement confirms that the Department of Defense conducted the JEDI Cloud procurement process fairly and in accordance with law,” Lt. Col. Robert Carver said in a mass-email. “The IG’s team found that there was no influence by the White House or DoD leadership on the career source selection boards who made the ultimate vendor selection. This report should finally close the door on the media and corporate-driven attacks on the career procurement officials who have been working tirelessly to get the much-needed JEDI cloud computing environment into the hands of our frontline warfighters while continuing to protect American taxpayers.”

UPDATE Microsoft swiftly hailed the report and posted a blog by its deputy general counsel, Jon Palmer, noting that one of the few improprieties the IG found arguably gave Amazon an unfair advantage, not them. “Should a company, like Amazon, that bid high and lost, now get a do-over, especially now, as the IG’s report makes clear, Amazon received additional proprietary information about Microsoft’s bid that it should never have had?” Palmer asked. “Amazon’s suggested approach – bid high, lose, try again – isn’t fair.  It’s the opposite.” END UPDATE

Cover of the Defense Department Inspector General report on the JEDI cloud computing competition.

What The Inspector General Actually Said

It’s true the Inspector General deemed the award process fair. That said, the report does say that two of the many officials it investigated did act improperly: Deap Ubhi of the Defense Digital Service, who later went to work for Amazon, and Stacy Cummings, a deputy assistant secretary for acquisition who owned stock in Microsoft. But it determined their role in JEDI was so early on and so limited that they did not compromise the process.

It’s also true that the IG interviewed the relatively low-level officials who actually ran the procurement and concluded – apparently, based on their own testimony – that they had not been improperly influenced by the president’s public statements or their senior leaders. Indeed, the Pentagon chiefs who were most likely to talk with White House staff mostly didn’t even know who the selection officials were:

“None of these witnesses told us they felt any outside influence or pressure for or against a particular competitor as they made their decisions on the award of the contract. These witnesses also told us that public statements from the President and ‘media swirl’ about the contract did not directly or indirectly influence the integrity of the procurement process or the outcome of the JEDI Cloud source selection,” the report says. “The DoD personnel who evaluated the contract proposals and awarded Microsoft the JEDI Cloud contract were not pressured regarding their decision on the award of the contract by any DoD leaders more senior to them, who may have communicated with the White House…. Most of their identities and involvement in the procurement award were unknown to White House staff and even to the senior DoD officials.”

But the IG pointedly said it could not determine whether or not the White House tried to influence the award: “We sought to review whether there was any White House influence on the JEDI cloud procurement. We could not review this matter fully because of the assertion of a ‘presidential communications privilege,’ which resulted in several DoD witnesses being instructed by the DoD Office of General Counsel not to answer our questions about potential communications between White House and DoD officials about JEDI. “

The IG did try. “We provided the DoD Office of General Counsel with a list of questions, separated specific to each witness, [and the] General Counsel told us they then asked White House Counsel to review the list of questions and identify the subject areas, or specific questions, over which the President would assert the presidential communications privilege,” the report says. “After our repeated requests for a response, on February 25, 2020, the DoD Office of General Counsel stated that White House Counsel was only willing to allow witnesses to provide written answers to our questions where the presidential communications privilege was invoked; however, it stated that no representation could be made as to the number or extent of questions that could be answered, and that any written responses would require further review by White House Counsel on the issue of maintaining the privilege.

“We carefully considered this response and concluded it would not be an appropriate and practical way to conduct our review, because there was no assurance as to which questions would be answered, it would unduly delay the report, it would not allow for an interview and inevitable follow up questions, and it would not assure that we would be receiving full information from the witnesses,” the report goes on. “We therefore declined to proceed in this manner.”

“Therefore,” the IG says, “we could not definitively determine the full extent or nature of interactions that administration officials had, or may have had, with senior DoD officials regarding the JEDI Cloud procurement.”

So, this report is unlikely to end the ongoing public controversy and legal battle over JEDI. In fact, the IG says that, since it only evaluated the award process, not the facts of each company’s bid, it can’t say anything about whether Microsoft was the right choice – the main fact in dispute in Amazon’s suit before the Federal Court of Claims. If anything, the IG has just provided more ammunition for arguments that the White House is not being transparent about its role.

Andrew Hunter

UPDATED: Experts Warn This Isn’t Over

“The IG ruling gives us half the story,” said Andrew Hunter, a former DoD acquisition official himself, who now heads defense-industrial studies at the thinktank CSIS. “The source selection team has asserted that they made the decision on the merits and without being forced to an outcome by superiors in the Department. The question of whether they correctly decided the competition on the merits as defined in the solicitation is what the Court of Federal Claims will decide in the bid protest.”

“So I’d say the IG report gives us a significant piece of the puzzle, but the puzzle isn’t yet done,” Hunter continued. “The IG report does undercut some of the public rhetoric that the decision in favor of Microsoft could only have been a political one. At the same time, the refusal by the White House to allow witnesses to testify, based on a Presidential communications privilege, seems to invite further investigations by Congress, as it seems to imply the President or his senior staff was directly engaged with DoD on a source selection decision.”

“There is still this lack of trust in the procurement system that the IG report hasn’t completely dampened down,” agreed Bill Greenwalt, a former Hill and DoD official.

Bill Greenwalt

What’s missing?

“The key thing to look at is whether JEDI requirements were dumbed down or manipulated during this process to factor out any of Amazon’s technical and first-to-market advantages,” Greenwalt said.  “It doesn’t look like the IG looked at that question — but I would assume the Court of Federal Claims will.”

Yes, he said, “the source selection officials at the lower level that the IG interviewed probably were not influenced — but the question that would still remain is whether the criteria they awarded on were tailored in such a way to favor only one particular contractor.”

The current Amazon protest taps into a longstanding perception that the system can be rigged,” Greenwalt lamented. “Unfortunately, there may be some truth to that perception, as it derives from a long history of the services and DOD having to manipulate requirements to favor a particular vendor that Congress wanted, because appropriations earmarks were not always written with an exemption from legal competition requirements.”

Congressional earmarks are now banned — but as a result, acquisition has in some ways become “even more opaque,” Greenwalt said. “If a procurement can be manipulated for Congress, why not for the executive branch?”

Early in the lockdown era of the global pandemic, Larry Port of Rocket Matter called me with an idea. With the trade shows we routinely attend getting canceled all over the place and with lawyers struggling to figure out how to keep their practices operating at a high level while stuck at home, Port envisioned an entirely online legal conference with a special emphasis on what the legal technology world can do to help practitioners excel from home.

That’s when Rocket Aid was born and it’s frankly amazing to realize this all came together in less than a month. Around 300 attorneys had registered the last time I checked in to join a jam-packed two full days of content.

As day 1 draws to a conclusion and we gather for the first online happy hour of the show, it’s been an incredible experience so far. We’ve had webinars on the tools required to lawyer remotely, a lesson on the hidden gems of Office 365, and — for those who hate Microsoft — we even had a panel on running firms with Macs.

I joined a roundtable discussion with Bob Ambrogi, Joanna Goodman, Beth Anne Stuebe, Zach Warren, Jobst Elster, and Caroline Hill covering “Reporting and Legal PR in the Coronavirus Age.” As journalists covering this space, we use these shows to compare notes and this was the first opportunity we’d had to get together as a group and discuss the trends we’ve seen. Not to spoil it for anyone who might want to watch the recorded version, but there’s really something to be said for the crisis spurring the industry to make long overdue changes and the legal technology sector is working hard right now to help everyone make those changes.

If you weren’t already at the show, come on over tomorrow! Registration is a mere $25 donation to help raise money for Coronavirus-related causes.

If you’re looking to jump in Friday, here’s a preview of the schedule:

• 9:00am-9:10am Day 2 Introduction and Six-Minute Session
• 9:10am-10:00am Mental Health: Staying Sane While Working Remote (Megan Furino, Carmen Rosas)
• 10:10am-11:00am How to Increase Profits and Sanity by Running a Lean Law Firm (Dave Maxfield, Larry Port)
• 11:00am-11:15am Networking Break and Online Yoga
• 11:15am-11:45am Being Completely Mobile While Being Completely Ethical (Brett Burney, Larry Port)
• 11:45am-12:15pm What Legal Consumers Want from Law Firms in 2020 (Jared Correia, Larry Port)
• 12:15pm-12:30pm Networking Break and Meditation Session
• 12:30pm-1:00pm Managing Productivity in a Remote Work Environment (Steve Riley)
• 1:00pm-1:50pm Future-proof Your Business Communications in 3 Easy Steps (Lily Toy, Craig Walker)
• 1:50pm-2:40pm A 12-Month Plan for Going Paperless (Larry Port, Bryan Sims)
• 2:40pm-3:00pm Networking Break and Six-Minute Sessions
• 3:00pm-3:30pm Remote Technology Do’s and Don’ts (John Simek, Sharon Nelson)
• 3:30pm-4:00pm Networking from a Distance: LinkedIn for Lawyers (Dennis Kennedy, Allison Shields)
• 4:00pm-4:30pm Six-Minute Sessions
• 4:00pm-6:30pm Online Happy Hour

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.

This is big. After all, only 10 firms in the entire country are bigger than Norton Rose Fulbright; they had $1,969,315,000 in 2018 gross revenue, making them number 11 on the Am Law 100 ranking. But despite that size and might, the firm still finds themselves in need of cost-cutting measures because of COVID-19. And not just salary cuts, which may firms see as a prudent move to help with cash flow as opposed to a permanent change in compensation, but we understand layoffs are also part of their austerity plan.

So, let’s get to the details we know. Above the Law tipsters report Norton Rose Fulbright announced a 15 percent salary cut in the U.S. The compensation cut applies to all salaried non-partner attorneys and staff, except those making under $50,000. As of now, the pay cuts will start April 30 and are expected to last through September 30. As a tipster noted, “However, they’ve not cut their summer program nor ceased hiring new attorneys. There is no reduction in required billable hours or change in bonus metrics.”

We’ve also received information from multiple sources that the austerity measures at the firm have included layoffs — characterized by one tipster as “the WORST PART.” According to those at the firm, both staff and attorneys were impacted by these layoffs, but exactly how many folks find themselves out of work was something Norton Rose refused to disclose.

The firm has already moved to four-day work weeks for staff in the Europe, the Middle East, and Asia offices of the firm.

We reached out to the firm for comment, but have yet to hear back.

Best of luck to those who find themselves out of work in the middle of a pandemic.

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.

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 COVID-19 pandemic has forced many attorneys and their staffs to work from home for the first time, the Pennsylvania Bar Association has issued an ethics opinion intended to provide guidance now and into the future on working from home and other remote locations.

The opinion, by the bar’s Legal Ethics & Professional Responsibility Committee, also addresses the duty of technological competence and its implications for attorneys and staff when working remotely.

Full text: PBA Formal Opinion 2020-300 Ethical Considerations for Attorneys Working Remotely.

When Pennsylvania Gov. Tom Wolf ordered the closure of all non-essential businesses, including law firms, many attorneys were not prepared to work remotely, and many questions arose concerning their ethical obligations, the opinion says.

The overarching ethical responsibility when working remotely, the opinion says, is that attorneys and staff “must consider the security and confidentiality of their client data, including the need to protect computer systems and physical files, and to ensure that telephone and other conversations and communications remain privileged.”

The opinion affirms prior Pennsylvania opinions holding that it is ethical for attorneys to allow client confidential material to be stored in the cloud and that an attorney may maintain a virtual law office in Pennsylvania, provided appropriate safeguards are taken.

The opinion also adopts Formal Opinion 477R issued in 2017 by the American Bar Association holding that a lawyer may transmit client information over the internet provided the lawyer takes reasonable efforts to prevent inadvertent or unauthorized access, including, when appropriate, the use of email encryption.

With regard to the duty of technological competence, the opinion says that it requires attorneys to understand the risks and benefits of technology as it relates to the specifics of their practice, such as engaging in electronic discovery.

But the duty also goes further than that, the opinion says.

“This also requires attorneys to understand the general risks and benefits of technology, including the electronic transmission of confidential and sensitive data, and cybersecurity, and to take reasonable precautions to comply with this duty.”

If attorneys lack the requisite knowledge and skill to implement technological safeguards, then they should consult with staff or other entities capable of providing the appropriate guidance.

At a minimum, the opinion says, when working from home or remotely, attorneys and their staff have an ethical obligation to take reasonable precautions to assure that:

• All communications, including telephone calls, text messages, email, and video conferencing, are conducted in a manner that minimizes the risk of inadvertent disclosure of confidential information.
• Information transmitted through the internet is done in a manner that ensures the confidentiality of client communications and other sensitive data.
• Remote workspaces are designed to prevent the disclosure of confidential information in both paper and electronic form.
• Proper procedures are used to secure and backup confidential data stored on electronic devices and in the cloud.
• Remotely working staff are educated about and have the resources to make their work compliant with the Rules of Professional Conduct.
• Appropriate forms of data security are used.

The opinion discusses some of the unique issues that working from home presents. For example, it cautions against speaking with clients when smart devices such as Amazon’s Alexa and Google’s voice assistants are present, or even when others in your home can overhear you.

Among the opinion’s recommendations for ensuring client confidentiality:

• Avoid using public Wi-Fi hotspots.
• Use a virtual private network.
• Use two-factor or multi-factor authentication.
• Use strong passwords to protect data and devices.
• Ensure that video conferences are secure.
• Backup data stored remotely.

Notably, the opinion also urges lawyers to be cognizant of their obligation to act with civility and to treat the courts and their adversaries with courtesy and respect.

“[W]orking from home has become the new normal, forcing law offices to transform themselves into a remote workforce overnight,” the opinion concludes. “As a result, attorneys must be particularly cognizant of how they and their staff work remotely, how they access data, and how they prevent computer viruses and other cybersecurity risks.”

Billionaire Treasury Secretary Steven Mnuchin feels your pain, America. He’s one with the common man. The poor son of a partner at Goldman Sachs who scrimped and saved and worked his way up to becoming a partner at Goldman Sachs, Mnuchin knows what it’s like to fall on hard times.

Well, not personally, of course. But he did get a front seat to the show from his perch as CEO of OneWest as the company foreclosed on thousands of homeowners. And it was all totally legal, dammit … well, mostly.

Anyway, the point is, Mnuchin knows that times are tough right now, so he and Donald Trump are doing everything they can do help Real Americans get through it.

“There’ll be these- these checks in the mail or direct deposit. It’s really bridge liquidity for people as they go through these difficult times,” Mnuchin told CBS’s Margaret Brennan, describing the checks for a whopping $1,200 dollars that started going out this week, graced with the president’s echocardiogram cum signature. But in the memo line, because he can’t technically sign it himself.

“Bridge liquidity for about eight weeks?” asked a skeptical Brennan, no doubt wondering how $150 per week would provide “liquidity” for any American family struggling to pay rent and put food on the table.

But no, the Secretary clarified, he meant the checks to cover ten weeks.

“Well, I — I think the entire package provides economic relief overall for about 10 weeks,” Mnuchin explained, helpfully. “Hopefully we’ll kill this virus quicker. In the end, we won’t need it. But we — we have liquidity to put into the American economy to support American workers and American business.”

So that would be $120 per week, a sum which wouldn’t cover the lovely Mrs. Mnuchin’s Botox. But don’t worry because, “In the end, we won’t need it,” right?

You can watch their exchange here.

Whoops, terribly sorry, something wrong with the feed. Here it is!

Nope, that’s not it either. Darnit! Okay, here ya go.

So don’t say Uncle Steve and Uncle Donny never gave you anything. And don’t spend that massive windfall all in one place, kids!

Transcript: Steven Mnuchin on “Face the Nation,” March 29, 2020 [CBS]

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

The Biglaw cost-cutting measures brought on by COVID-19 is creeping up and up the Am Law rankings, proving big gross revenue is not enough to stem cash flow concerns. The latest firm to announce cuts is Reed Smith, who raked in $1,174,973,000 in 2018 gross revenue, making it 27th on the Am Law 100 ranking.

Today, firm global managing partner Sandy Thomas announced on an all-associate call that associate pay will be cut by 15 percent for May through September. They’re also cutting counsel salary by 10 percent. And they’d previously announced a voluntary leave program during the coronavirus crisis. (The firm also released an FAQ about the cuts, available on the next page.)

A firm spokesperson had this to say about the cuts:

As a result of the effects of the ongoing COVID-19 crisis, we have made a series of compensation adjustments in recent weeks that affect our lawyers and professional staff. After our initial decision last month to defer partner distributions across the firm, we also reduced base pay for counsel by 10 percent for the next three months and deferred decisions on merit increases and discretionary bonus payments for professional staff. We can now confirm that we are reducing associate pay by 15 percent for four months, beginning in May. Annual raises have already been awarded to associates, and their previously announced bonuses will be paid later this month.

According to tipsters, the cuts (particularly since they have associates taking a deeper cut than counsel) have gone over like a lead balloon:

Associates are MAD. Sandy Thomas came on and gave what came off as a very condescending pep talk – we know you’re working hard because we see your utilization and we know your clients need you. Many of us are left to wonder, ok, then why cut our pay so much (5% higher pay cut than counsel took).

Best of luck to those at Reed Smith as they deal with these austerity measures.

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.

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).

I know it seems like ancient history, but it was only about a month ago in mid-March that many states closed all nonessential businesses, which resulted in the closure of most law offices. Right around that same time, many courts suspended most in-person proceedings. With the issuance of those declarations, the world as we knew it came to a screeching halt.

And then, against all odds, the legal profession rose to the occasion and began to rapidly adopt technology at rates never before seen. Governors and courts issued orders in rapid pace that affected — and modernized — the practice of law. Seemingly overnight, our profession was practicing law like it was 2030 by requiring lawyers to use readily available technologies to facilitate and streamline the swift administration of justice.

I’ve been tracking this phenomenon with a mixture of incredulity and amazement. For those who may have missed some of the announcements of these advancements, which often got lost in the midst of the daily barrage of ever-changing COVID-19 news, here are some of the most notable examples of technological innovation and adoption that have impacted the practice of law.

E-signatures

Courts across the country have begun to allow electronic signatures to be  used in place of “wet” signatures since the social distancing required by COVID-19 makes it difficult, if not impossible, to obtain in-person signatures. For example, the Massachusetts Supreme Judicial Court issued this temporary order on April 6 that permits attorneys “required to sign a document to be served on another party or filed with the court, … (to) electronically sign, unless the court specifically orders otherwise.” As a result, the need for e-signature tools, whether they’re standalone or built into law practice management software, has increased significantly in recent weeks.

Virtual notaries

The COVID-19 pandemic has understandably resulted in an increased interest in the preparation of documents that require notarization, such as wills and other documents like healthcare proxies. But the social distancing measures in effect obviously impact the ability to have the in-person notarization of the documents. That’s why most states have taken emergency action to enact remote notary rules that permit remote (or “virtual”) notarization via videoconferencing. You can find a full list of the states that permit remote notarization of documents here.

Digital documents

Another step forward for legal technology has been the acceptance of digital documents for court filings in lieu of paper documents. For years now, many courts have resisted the move toward all digital documents and have continued to require that paper documents be filed for many types of matters. COVID-19 is changing that since many courthouses and clerk’s offices have been forced to close their doors for the time being. As a result, many courts are revising their rules and allowing solely digital documents to be filed in matters that would have previously required paper document filings. For example, in this order from the United States Court of Appeals for the Second Circuit dated March 26, Chief Judge Robert A. Katzman suspended the court rules that required the filing of paper copies of briefs.

E-filing

Likewise, social distancing and the resulting shift to digital documents by many courts necessitates that e-filing be permitted in lieu of in-person filing of pleadings. Accordingly, many courts now permit e-filing in cases where it was not previously allowed. By way of example, the California Supreme Court issued this order on March 18 and subsequently posted the following notice to its e-filing website: “In light of the California Supreme Court’s [March 18, 2020] amendment of the ‘Supreme Court Rules Regarding Electronic Filing,’ rule 2, henceforth and until further notice, all documents (including briefs) must be filed electronically on the ‘TrueFiling’ platform, and paper copies should not be submitted …”

Videoconferencing (or teleconferencing)

Last, but not least, courts and legal professionals have embraced video conferencing en masse from the very start of the shelter-in-place requirements. Courts at all levels, from local courts to the highest court in the land, have begun to permit legal proceedings to move forward via video or teleconferencing. For example, on March 31, the Judicial Conference of the United States announced that it had “temporarily approved the use of video and teleconferencing for certain criminal proceedings and access via teleconferencing for civil proceedings during the COVID-19 national emergency.” And earlier this week, the United States Supreme Court made the announcement that it would “hear oral arguments by telephone conference on May 4, 5, 6, 11, 12 and 13 in a limited number of previously postponed cases.”

So, the times they are a-changin’ folks, and more rapidly than I ever expected. If you’re interested in more insight on the unprecedented rate of change and what it means for the legal profession, make sure to check out Above the Law columnist Bob Ambrogi’s latest LawNext Podcast, where Bob interviews Richard Susskind. Find out what Richard — a world-renowned expert, speaker, and author on the future of legal services — has to say about the whether the COVID-19 pandemic will facilitate a fundamental change in the adoption of technology by the legal profession and the delivery of legal services generally.

Nicole Black is a Rochester, New York attorney and Director of Business and Community Relations at MyCase, web-based law practice management software. She’s been blogging since 2005, has written a weekly column for the Daily Record since 2007, is the author of Cloud Computing for Lawyers, co-authors Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York. She’s easily distracted by the potential of bright and shiny tech gadgets, along with good food and wine. You can follow her on Twitter at @nikiblack and she can be reached at niki.black@mycase.com.