Category: News Feeds

With election season prematurely upon us, lawyers across the country will gear up to run for office, and their opponents will gear up to bash them for the clientele they’ve served. Should lawyers ever be criticized for zealously defending clients? Is the justice system undermined if attorneys feel some clients are too toxic to represent?

One of the most surprising bits of news from a lawsuit that the owner of Portland, Oregon, bar Cider Riot filed in May against the far-right organization Patriot Prayer is that video footage submitted as evidence seems to have led to a fall from grace for Andy Ngo, a writer who had been a rising star in conservative media.

However, a bigger question than why Ngo left his editorial position at online right-wing magazine Quillette is how he managed to rise to the heights he did in the first place. It’s an uncomfortable question for journalism, but still necessary to ask because the truth is, Andy Ngo is journalism’s problem.

Ngo raised eyebrows on Aug. 26, when he quietly removed Quillette’s name from his Twitter profile, and the magazine removed him from its masthead. Earlier that day, the Portland Mercury published an article about a pseudonymous left-wing activist who had infiltrated Patriot Prayer and filmed the group allegedly plotting a violent May 1 attack on Cider Riot, a popular leftist hangout. The video appears to show Ngo standing well within earshot of the conversation — the activist claims he overheard everything — but he didn’t include it in subsequent reports. That confirmed in the minds of his critics a longstanding suspicion that he was simply a far-right propagandist posing as a journalist.

Ngo has denied that he had knowledge of the alleged plot. Quillette editor Claire Lehmann tweeted that he had actually left the magazine already and had been off since July due to a brain hemorrhage sustained in a now infamous incident when several Antifas beat him in late June. Both have explicitly denied that Ngo’s leaving the publication was related to the video.

Still, given the timing of Ngo’s exit and the awkward way it became public, as well as his history of credibility issues, I can’t help feeling a tad skeptical. But regardless of the circumstances of his exit from the magazine, I don’t think Ngo could have gotten as far as he did were it not for a confluence of factors in politics and media in the past few years.

Those factors should be familiar. A hyperpartisan political climate. Public cynicism toward legacy news media and a perceived porousness in the relationship between reporting, analysis and opinion. The growing role of social media and crowdfunding in the dissemination of content, often with no editorial oversight. The internet’s erosion of journalism’s traditional structural barriers to entry.

Combine those elements, and you have the perfect primordial soup to give birth to a new kind of perfidious pseudo-journalist. WikiLeaks founder Julian Assange could be considered a prototype, but Ngo is a more refined version, born of the social media age. There will undoubtedly be more like him, and it’s imperative for those of us who value journalism’s critical role in democracy to be on guard.

Miscreants and pretenders exist in every profession. Law has its pettifoggers, medicine its quacks. But Ngo is something distinct from journalism’s occasional plagiarists and fabricators. Strictly speaking, he’s a propagandist who selectively presents facts to push political narratives, but he puts on the airs of a disinterested, objective reporter.

Of course, it’s not as though Ngo’s propagandist role or credibility issues were secrets. In 2017, the student newspaper he worked for, Portland State University’s The Vanguard, fired him over a tweet that paraphrased remarks by a Muslim student in a panel discussion in a way that the newspaper said took them out of context and put the student in danger. Instead of the soul searching any responsible journalist would do, Ngo took his story to the National Review, claiming he was “fired for reporting the truth” — a claim the newspaper challenged, but that helped make him famous. In August 2018, The Wall Street Journal had to issue a correction on his op-ed about Muslim neighborhoods in London when he suggested a sign reading “alcohol-restricted zone” was due to sharia law rather than being about public drinking — something any reporter could have discovered simply by asking someone on the street. And critics have long complained that he presents videos of brawling between far-left and far-right groups in a selective way that plays up violence by the former and downplays violence by the latter – most recently when he described the clash that took place in Portland on Aug. 17. Left-wing anger at Ngo boiled over in the aforementioned June attack on Ngo, which earned him support and sympathy from figures in news media and politicians.

I should state that I deplore political violence without reservation, including the attack on Ngo. That said, it’s apparent he’s been using his injury as a ploy for attention and to position himself as a go-to expert on left-wing lawlessness. And I’m not the first person to observe that he has carved out a media career that drapes a veneer of journalism over a mix of propaganda and professional victimhood. But one of the rules of journalism is that you’re not supposed to make yourself part of the story. So any self-styled independent journalist who goes out of their way to do so should arouse suspicion and is likely in this business for the wrong reasons. Ngo’s obvious desire for attention and problems with credibility should have been red flags from the start. And to be fair, many journalists weren’t fooled.

Unfortunately, however, many other journalists were, most importantly those in positions of power and influence. They helped elevate someone who should have been unceremoniously told to find another line of work a long time ago. That happened because he told stories that fit popular narratives of an intolerant, violent left and Islam’s existential threat to the West— and all from the beguilingly compelling perspective of the openly gay son of Vietnamese refugees. I’m sure his perpetual sad puppy demeanor, dispassionate vocal delivery, and phony English accent helped too.

In the days when journalism was limited to paper and airwaves, the need to go through established outlets served a function akin to the licensure that people must obtain to practice in professions like medicine and law. As the internet, social media and crowdfunding have removed those barriers to entry, for many people a “journalist” is now almost anyone who claims to be one — a view summed up in a July 2 defense of Ngo by New York-based YouTuber Alec Bostwick. While such a democratization of the profession may seem like a good thing, it also opens the door to a lot of unscrupulous types.

Journalism’s lack of a formal system of licensure is a feature rather than a bug and certainly not a bad thing it itself, as licensing journalists is generally something one finds in authoritarian states. While that’s great from a civil liberties standpoint, the downside is that it makes it a lot harder to protect journalism from those who misuse and abuse it.

What we can — and indeed must — do as a profession is keep our eyes out for bad-faith actors and not extend them professional respectability they don’t deserve. In other words, while the First Amendment’s freedom of the press applies to all, being accepted as a journalist should be a privilege rather than a right.

Alaric DeArment is a New York-based reporter at a sister publication of Above The Law. The opinions herein are entirely his own.

[T]his audience can see that I am alive. I am on my way to being very well.

I love my job. It’s the best and the hardest job I ever had. It has kept me going through four cancer bouts. Instead of concentrating on my aches and pains I just know that I have to read this set of briefs, go over the draft opinion, so I have to surmount whatever is going on in my body and concentrate on the court’s work.

— Justice Ruth Bader Ginsburg, in remarks given during an appearance at the National Book Festival in Washington, D.C., where she commented not just on her recent recovery from radiation for pancreatic cancer, but her preparedness for the upcoming Supreme Court term.

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.

There is back to school fervor in my house with my two kids expressing enormously vacillating emotions about the new year. Panic, happiness, sadness, nervousness, confidence — it is definitely a whirlwind of feelings as we plan outfits and practice our social media first day poses with the same seriousness that we contemplate our snack choices. I often reminisce of my own first days of schools, including the happiest of first days — my final ones, in law school.

I have recently found myself encouraging my kids to expand their interests and join extracurricular activities. Given my background, I push debate and theatre over hockey and pottery, the emphasis, of course, being on public speaking, analytical thinking, and growing confidence. How blessed are these children that they need not feel pressure to choose clubs that will get them a job or expose them to a career opportunity?

For those of us who are solo practitioners, or who work for small law firms, the start of the school year is the start of opportunity. Extra curriculars for the law student seeking a solo or small firm career are especially important. Contacts and relationships must be made early in a law school career to ensure that a job, someday, may become a possibility. Internships, clerkships, and mentorships make careers and influence choices, often more than any class.

Typically the law student’s presence  in a small or solo law firm is abundantly appreciated by the law professionals. At times, the student’s presence means that the work force has doubled by 100 percent. For clients, a benefit of a small law firm is not only lower prices, but interaction and facetime with a specific attorney. The result is that often matters can take longer to complete. With an intern, specifically one in the summer,  the speed of the firm changes. The momentum can be exhilarating, a change from the rest of the year.

Interning for a small firm gives the student experiences that one may not have in a larger setting. Court appearances, client meetings, closings — these are just a few of the opportunities that a foray into the small law world can provide someone who is even just starting law school. Small firms cannot provide the same payment and perks as big firms, but they make up for it in meaningful work and participation in active cases.

In the trusts and estates sector, an intern for a small firm may get to assist in the probate of an estate, filing papers with the local surrogate’s court, legal research, observing settlement conferences, constructing genealogical charts, tracking down long lost relatives, or even something as macabre as the supervision of the cleaning out of a decedent’s house. In the realm of estate litigation, the role of the legal intern or summer associate, observing depositions or assisting with discovery,  can be very thrilling.  To that end, something as mundane as witnessing a last will and testament can leave an indelible mark on a student yearning to learn the trade.

As we start the new year, all students should look to enlarge their learning with hands-on training. For the law student, especially one who seeks to work in a small environment, the summer is not the only time to learn the field. As September unfolds, and the court’s activity increases from the summer months, all students should take advantage of the opportunities that small and solo firms provide. Doubly, solo and small firms should not fear the start of the school year, and pursue relationships with students year round.

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. 

In my first column at Above The Law a year ago, I chose to discuss the failures of principled consistency. I felt it necessary to begin a column that focused primarily on civil liberties to discuss whether consistent application of an enumerated set of deals is even possible. As was the case a year ago, I must admit there is not much evidence to support the notion.

I mean think about it, four years ago Republicans were accusing Democrat president Barack Obama, without a shred of evidence of course, of initiating an armed coup against the state of Texas. These were not just hyperbolic accusations either. Texas Governor Doug Abbot ordered the Texas State Guard to monitor the routine federal military exercises. Yet this same Republican party is now trying to claim this president is being treated unfairly because of things like, and I am not kidding, that people won’t agree the president never lies.

Most of the time I must admit I don’t even know how to respond to the supporters of this current president. What could I even say to a group of people who continue to claim this guy is all about “America first” despite the clear and unambiguous report by his administration’s DOJ that he welcomed illegal acts committed by our top foreign adversary against fellow Americans? How does the supposed party of law and order expect my respect, much less my vote, when they excuse this president illegally obstructing the investigation into a hostile foreign power’s crimes?

I understand that no party or person is likely going to live up perfectly to a set of ideals, I also understand that terrible leadership is “as American as apple pie.” In fact, gross hypocrisy is an original American feature. For example, at the same time the framers were demanding “freedom” from oppression, they themselves kept millions upon millions of African Americans in ghastly bondage.

I know all this, yet I continue trudge on with my belief that principled consistency is not only possible, but ideal. In the past year, I have tried my best to call out the threats and violations to civil liberties as I see them, regardless of which party or which person is behind them. I am still here writing, so I guess all I can say is thank you to everyone who reads my stuff, and cheers to another year of trying to be consistent. I’ll end with some other personal reflections from my first year at ATL:

• The Mueller report was a heavy f*cking lift.

• The Fourth Amendment exists in name only.

• The Drug War is a catastrophic, bigoted, expensive, ineffective failure.

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

Checklists are important. Pilots (and their passengers) rely on them every time they fly. So do surgeons when performing even the most routine of operations. As with many things, however, a checklist is only as good as the person or people who put it together. A checklist created by an amateur pilot without deep and broad experience flying planes, for example, might be helpful to that pilot. But it would pale in comparison to a checklist created for taking off and landing a 777, created by an industry-wide consortium of expert pilots. In short, the value of a checklist is reflective of the expertise and thoughtfulness of those creating it.

In my experience, lawyers do not use checklists nearly enough. Perhaps because they are time-consuming to create. Nor are they easily delegated to associates to craft, except for perhaps the most mundane or routine tasks, like handling ECF filings in a particular court. Moreover, creating checklists runs counter to the familiar lawyer pretension that all matters are necessarily unique — thereby justifying static (and high), rather than variable, billable rates whenever the lawyer can get away with it. Either way, I have no desire to create a checklist in this series of columns. Instead, I want to encourage IP associates — particularly the newbies who may be starting work at their first post-law school firms over the next few weeks — to start thinking about what kinds of checklists a successful IP associate might aim to use.

To that end, it is helpful to consider what the true goals of a successful IP associate should be. Now that I am over a decade removed from my own time as an IP associate, I think the best articulation of what an IP associate (and any lawyer) should strive for was made by one of my own supervising partners, the inimitable and exacting Barry Schindler of Greenberg Traurig. He would often exclaim how important it was to learn how to do things right so “you know what you are doing when you are 40 years old.” A clear exhortation that I should do whatever I could to get both broad and deep experience in as many aspects of IP legal practice as possible, while I still had the guidance of more senior lawyers readily available.

At the same time, the built-in wisdom of that statement is in forcing associates to recognize that the lawyer they will be at 40 can and should be a much better version of the lawyer they are now. To get there, however, IP associates must be both curious and determined, as well as self-motivated. I have yet to see a firm where there is a genie doling out the “best experience” for each and every associate out at each step of every associate’s career. But that is okay, since it helps distinguish the associates actually cut out for long-term success in IP practice from their just-collecting-a-check compatriots. But before you can start planning how to achieve the goal of becoming a well-rounded IP associate, it is helpful to think a bit about the difference between broad and deep experience, while acknowledging how important getting both is in any successful legal field.

Let’s start with how to get broad experience — otherwise known as trying to get exposure to as wide a range of lawyers, clients, and legal matters as possible. We can discuss each in turn, but first a word of caution. It can be very frustrating to ambitious young lawyers when they don’t get the exposure they want to a breadth of matters. If you find yourself in that situation, try and remember a few things. One is that nothing lasts forever, and that good work on whatever you are stuck with will open up other opportunities later. Second, that you can and should always seize whatever control you can of your time to make sure you don’t get discouraged. So try and keep a side project — whether it is an article, research project, or whatever — going at all times. Heck, you can even create a checklist for the type of matter you are stuck on to help the next generation of unlucky souls stuck with a similar project.

Back to acquiring a breadth of experiences as an IP associate. We can assume you will seek them out, while keeping in mind that the words “I can help” carry disproportionate power at law firms. Start by taking an inventory of the partners in your group. Can you find a way to work with as many of them as possible? Expand that out over time to trying to work with partners in other offices (believe me that making a good impression on them is super important in partnership election discussions about you) and other practice groups. Grab opportunities to interact with other lawyers you are working with, whether they are local, co-, or even opposing counsel. There is something to learn from everyone, even other IP lawyers

Take a similar approach to acquiring a breadth of exposure to different types of clients. In IP, you can find yourself working with inventors and designers during one hour, followed by discussion with in-house counsel at a global technology company the next. Breadth of client exposure includes seeking out a chance to serve foreign and domestic companies, of all sizes, operating in a wide variety of industries. Again, true breadth of experience needs time, so be patient. But also be mindful of whether the firm you are at is giving you as broad an exposure to a range of clients as you think you need for long-term success.

Perhaps most importantly, seek out breadth of exposure to as full a range of different IP matters as possible. It helps keep things from getting stale professionally, and in my view, there is little value to either a lawyer or a firm for junior associates to classify themselves as strictly patent or trademark lawyers, for example. Yes, client matters will drive an associate’s exposure to the different IP disciplines, but associates should also be seeking out exposure to each of those disciplines as well, which means looking out for patent (including design patents,) trademark, copyright, and trade secret matters. Ideally, that exposure will include experience with litigation, prosecution, and licensing matters — including at least some exposure to marketing of IP services, litigation funding considerations, and IP acquisition or divestment matters. It may not all be possible at your current firm, or with your current practice, but it is worth being ambitious about acquiring that full breadth of experience as quickly as possible. 

Ultimately, acquiring breadth of experience as an IP associate bears important fruit later in a lawyer’s career. Having broad experience can make a senior lawyer more marketable, as well as more attractive to clients with a range of IP needs. Broad experience also helps prevent burnout, while allowing the bearer to see and appreciate the interplay of different aspects of IP rights. In short, broader is better when it comes to experience for IP associates. So start thinking about how achieving breadth would impact on your personal IP associate checklist. Next week, we will strive for some depth.

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.

Travis County, Texas Court-at-Law No. 3 Judge John Lipscombe doesn’t like Brett Kavanaugh, which, amen. He also believes that Kavanugh’s elevation to the Supreme Court is a blight on the nation’s judiciary, which, again, same. But when Lipscombe’s outrage over Justice Kavanaugh spilled over into a protest in his courtroom, he wound up in hot water with the Texas Commission on Judicial Conduct.

In October of 2018, Lipscombe closed his courtroom with a black cloth over the door as a form of protest over the confirmation of Brett Kavanaugh to the Supreme Court. Lipscombe’s protest was even covered by local news.

The resulting media attention garnered Lipscombe five complaints over his protest. As reported by Texas Lawyer, even after getting called out by the Commission for his protests, Lipscombe gave the ultimate sorry, not sorry response:

“I strongly felt, and continue to feel, that the Supreme Court and our entire judiciary has been besmirched and that I had a personal obligation to show my disapproval and demonstrate my utmost respect for the judiciary and my dedication to our constitution and its principles of fairness and justice,” Lipscombe said, according to the reprimand.

The Commission ultimately found Lipscombe’s behavior was a violation of judicial ethics as it was influenced by “partisan interests and public clamor” and “cast public discredit on the judiciary or the administration of justice.” The Committee issued a public admonition, which can be read below, as punishment for his actions.

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).

We’ve branded them a “Will-They-Or-Won’t-They romantic comedy,” but now we know that the answer is definitively “won’t” with the two firms calling off merger talks.

As recently as July, we were hearing that this deal was right around the corner. It made all the sense in the world with Allen & Overy broadcasting a commitment to major expansion in the United States with O’Melveny sitting right there with almost no gap in firm PPP. Why wouldn’t these kids get together and launch a 3,000-lawyer firm with around $2.8 billion in revenue?

But there were problems lingering from the beginning of this saga. Immediately after the story came out, O’Melveny fiercely denied it, declaring, “We have no plans to merge and never have.” It was news to Allen & Overy, who didn’t try to lie to the press and confirmed they were in negotiations with an American firm. To say the firms weren’t on the same page at the time is an understatement — they weren’t on the same document set.

But somehow they got beyond the opening gate stumbles and enjoyed a long courtship complete with reported leadership trips to London and Frankfurt to hash out details. O’Melveny made concrete changes to its U.K. recruitment efforts in a seeming nod to an impending merger.

Still, rumors swirled that a small enclave of powerful A&O London partners were opposed to the deal. As the U.K. stares down the barrel of a business cataclysm entirely driven by old Englishmen refusing to embrace economic globalism… this all tracks.

Whether the deal died because of those partners, or the stated reason of troublesome foreign exchange rates, it’s back to the drawing board for Allen & Overy leadership reiterating that expanding in the U.S. “remains the highest priority.”

Allen & Overy and O’Melveny & Myers abandon merger talks [Legal Cheek]

Earlier: The ‘Allen & O’Melvery’ Merger Seems To Be Gaining Steam
Checking In On ‘Allen & O’Melvery,’ Biglaw’s Most Hilarious ‘Will They Or Won’t They’ RomCom
Allen & Overy And O’Melveny Are Considering Merger (Please Name It Allen & O’Melvery)
O’Melveny Tells ATL ‘We Have No Plans To Merge And Never Have.’