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Every diminished capacity criminal defense sounds crazy and dangerous when people first hear it. Congressman Daniel Sickles once gunned down Francis Scott Key’s son, Phillip Key, in broad daylight, across the street from the White House. He was acquitted claiming “temporary insanity,” a defense never successfully tried before, because Key and his wife were having an affair. More recently, PTSD as a criminal defense was once mocked, then there was hand-wringing about “abuse” of the classification, and it’s now a widely accepted diminished capacity defense.

Not all diminished capacity defenses gain such acceptance. Dan White was convicted of voluntary manslaughter after he assassinated Harvey Milk and San Francisco Mayor George Moscone, despite arguing depression and offering his consumption of Twinkies as evidence of his depression. David Berkowitz, the “Son of Sam,” argued that a dog told him to kill the eight people in the summer of 1976. He later recanted his dog story, admitting that he was just trying to get an insanity plea going.

Ultimately, I think the new Trump Defense needs to end up in the latter dustbin. “MAGA bomber” Cesar Sayoc argued that his pipe-bombing terrorism was because of messages he received from watching Fox News and listening to Donald Trump. That mitigation was rejected, and Sayoc was sentenced to 20 years. Now, Curt Brockway, who was arrested and charged for assaulting a 13-year-old and breaking his skull because the kid didn’t remove his hat during the National Anthem, is arguing that Trump’s rhetoric contributed to the assault. From CBS:

The president’s “rhetoric” contributed to Curt Brockway’s disposition when he grabbed the boy by the throat and slammed him to the ground, fracturing his skull, at the Mineral County fairgrounds Saturday, attorney Lance Jasper told The Missoulian…

“His commander in chief is telling people that if they kneel, they should be fired, or if they burn a flag, they should be punished,” Jasper said. “He certainly didn’t understand it was a crime.”…

“Trump never necessarily says go hurt somebody, but the message is absolutely clear,” Jasper said. “I am certain of the fact that (Brockway) was doing what he believed he was told to do, essentially, by the president. … Everyone should learn to dial it down a little bit, from the president to Mineral County.”

This is a bad argument. To the extent that we think Trump’s rhetoric had something to do with Brockway’s attack (and I believe it does), then the right answer is to change the standards so we can charge Donald Trump with incitement (though there are problems with that). Supporting a violent president is not mitigation for carrying out violent acts.

BUT… Brockway’s attorney is not wrong. Almost every day, and certainly at every rally, Donald Trump exhorts his followers to violence. As Michael Cohen said in open Congressional testimony, the president “speaks in code.” You’re supposed to know what he wants done, without him directly telling you to do it. And there are more than enough weak-minded sycophants (like Cohen, actually) to carry out his wink-and-nod orders. I do believe that Brockway was doing what he believed he was told to do. “Trump Derangement Syndrome” is not a thing on the left. But on the right, you absolutely see violent individuals who believe that their violence is justified and welcomed by the President of the United States.

What makes a diminished capacity defense stick, however, is not whether the criminal believed he was justified. What makes it stick is whether the criminal could no longer distinguish “right from wrong.” Brockway knew that assaulting a 13-year-old was wrong. The MAGA bomber knew that BOMBING PEOPLE was wrong. The El Paso shooter knew that shooting people was wrong. They just also believed that their wrong actions were justified, based on everything that Donald Trump says. That’s why their crimes cannot be mitigated, despite the president’s rhetoric.

Trump hasn’t (yet) managed to change the legal or moral boundaries of acceptable behavior. He just makes illegal and immoral behaviors feel normal. That’s not a criminal defense. That’s a social cancer.

Attorney for Montana man who threw teen in national anthem attack says Trump rhetoric to blame [CBS News]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

Westcliff University had been mum for months about its planned purchase of embattled Western State College of Law, but that changed this week.

Dr. Anthony Lee, President and CEO of Westcliff, said his for-profit school is “delighted to welcome Western State into our family.”

Lee’s comments via a press release came in the aftermath of a federal judge in Ohio signing off on one Orange County institution purchasing another. The court proceedings were a result of Western State’s parent university being in receivership, and Lee cast the law school as a victim of its parent’s financial problems.

“The law school had been successful with very experienced management, faculty, and staff,” Lee said. “We would not have become involved except for that. Westcliff is fully committed to helping Western State recover from its entanglement in the receivership and begin enrolling new students as soon as possible.”

Westcliff University was founded in 1993 and is accredited by the WASC Senior College and University Commission (WSCUC). Westcliff offers undergraduate and graduate degrees in business administration, information technology, and computer science.

Western State, an American Bar Association-accredited law school, was established in 1966 and is the oldest law school in Orange County.

Western State Dean Allen Easley has rarely engaged with the media about the events at the law school, but was quoted in the recent press release as expressing optimism about Westcliff’s planned purchase.

“We are incredibly grateful to Westcliff University for the commitment it has made to help secure a future for Western State College of Law and to secure a means for our students to continue their education at Western State through to earning their degrees,” Easley said. “Through enormous effort on the part of Westcliff, and the deeply rooted loyalty and commitment of our students, staff, faculty, and alumni, we have been given the opportunity to move forward.”

Westcliff University will buy the law school for $1. It will also secure the assets Argosy University, which was the parent university of Western State, used in the operation of the law school.

Lee said the purchase still requires approval of multiple regulators, which could take several months.

In the meantime, previously enrolled Western State students will be able to start their fall semester studies soon as part of a teach-out plan.

“When accreditor approvals have been secured the teach-out students will be absorbed into normal law school operations, and we will be able to enroll new students into Western State’s exceptional Juris Doctor program,” Lee said. “We are confident the transaction will close, but in the very unlikely situation it did not, we have contractually committed to teach currently enrolled students to their normal graduation dates.”

Lyle Moran is a freelance writer in San Diego who handles both journalism and content writing projects. He previously reported for the Los Angeles Daily Journal, San Diego Daily Transcript, Associated Press, and Lowell Sun. He can be reached at lmoransun@gmail.com and found on Twitter @lylemoran.

Here at Above the Law we care a lot about increasing transparency at Biglaw firms — that’s why we spend so much time reporting on bonuses and salaries and benefits. And while reporting on the market standard and leaders will always be a part of our mission, we also want to hear about what it’s like to actually work in the halls of Biglaw.

So, we’re asking our readers to fill out a brief survey about what they wish they knew about their firm before they started working there. We don’t care about the firm’s PR line, but about what associates really feel about the firm. We’ll be integrating the results of the survey into a new transparency project that’ll be launched later this summer.

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 a software company in the eDiscovery and information governance space for two decades, one might think there is little need to push the envelope. You can coast, right? Not true. Innovation waits for no one, and if all you do is sit around, then all you’ll be doing is sitting around.

iCONECT, the global software company and producer of the award-winning XERA eDiscovery platform, has announced that they are partnering with Newfield Capital Partners, a private investment firm, to provide strategic capital that will fund continued growth and innovation for the company. The terms of the arrangement are not public, but sources say it is a multimillion-dollar deal.

Ian Campbell, CEO of iCONECT, who’s been running the company for 20 years, gave me a few minutes of his time.

Asked what iCONECT is looking to accomplish with this infusion of capital, Ian told me that they are focused on innovative developments in the platform and on growing their market presence through sales and promotion. “We’ve known for a while that we have a better mousetrap,” Campbell says. “We’ve been focused on development for years. Now, we going to focus on expanded marketing and communications.”

iCONECT has been on the fringe of development in the GDPR space, and they have completed development of an auto-redaction tool that enables users to automatically identify and anonymize PII and PHI. They are also doing some cool things in video management for law enforcement, using the XERA platform to grant multi-party access to video evidence.

And they are planning a new software release that embeds some unique AI innovations into the platform.

What does this mean, I asked Campbell. “It finally means that AI will be transparent to the end user,” he says. iCONECT is working to integrate a continuous active learning technology that will make AI/machine learning seamless to the end user. According to Campbell, “People are looking for AI tools to be more interactive; to be similar to how they interact with other platforms, like Amazon or Spotify. We’re going to make our AI offering more intuitive and expand the self-serve capabilities within the iCONECT platform.”

Meanwhile, existing customers and partners of iCONECT are surely wondering what this arrangement means for them. Well, surely it means additional technology resources in the long run. Campbell tells me that nothing will change for existing users. There’s no change in ownership, no change in equity, and no change in personnel.

Customers will likely see an increase in brand presence in the market, but basically Campbell says they are still the same company looking to disrupt the eDiscovery market with their unique brand of innovation.

“We’ve been sitting on the sidelines for a number of years. eDiscovery software companies have come and gone over the course of 20 years. Our goal now is to confirm for everyone who backed the iCONECT horse that they made the smart decision.”

For their part, Louisville-based Newfield Capital Partners appears to have been monitoring growth in the eDiscovery space for years. Rob Bush, a partner at the firm, commented in a joint press release that “with the emerging opportunity in this space and a strong and experienced management team, we are confident that the impact on partners and end users will be very positive, resulting in significant growth for iCONECT.”

Disruption, consolidation, and innovation in the legal technology space is nothing new. There’s been a lot of movement in the past couple years. It’s good to see a little less disruption and the infusion of strategic capital into a product that’s got a vision and mission for the future. So many products have just disappeared. Clearly, it seems we have yet to see the best iCONECT has to offer.

Mike Quartararo

Mike Quartararo is the managing director of eDPM Advisory Services, a consulting firm providing e-discovery, project management and legal technology advisory and training services to the legal industry. He is also the author of the 2016 book Project Management in Electronic Discovery. Mike has many years of experience delivering e-discovery, project management, and legal technology solutions to law firms and Fortune 500 corporations across the globe and is widely considered an expert on project management, e-discovery and legal matter management. You can reach him via email at mquartararo@edpmadvisory.com. Follow him on Twitter @edpmadvisory.

No matter how you’ve been doing, chances are you’ve been doing better in the past two weeks than LeClairRyan. The blows have been coming for the Am Law 200 firm at a break-neck pace. Gary LeClair, the first named partner, announced he was leaving for regional firm William Mullen. Other partners, associates, and staff have been jumping ship in droves, including entire practice groups. The landlord of a shuttered satellite office has sued for hundreds of thousands in overdue rent and promissory note payments. Every day has brought more bad news for the firm.

So it was no surprise that LeClairRyan officially announced it was forming a wind-down committee on July 31 and is in the process of dissolving. A firm with over 270 attorneys and $120 million in annual revenue will soon be no more. How in the living heck does that happen?

Why Do Law Firms Fail?

Two caveats: (1) I do not have any insider information on what happened at LeClair beyond what’s been publicly reported; and (2) I have deep sympathy for the staff and attorneys who are in the midst of this professional upheaval. That said, and with all due respect to the people living this chaos, I would be derelict in my duty as a law firm managing partner if I didn’t try to glean some lessons from LeClairRyan’s meltdown. They’re far from the only firm that’s failed publicly in the past few years, and I doubt they’ll be the last. The segment of the market we occupy is facing unique challenges in the legal market, and complacency today might mean shutters tomorrow.

The silver lining of the spate of recent firm failures is that we have some data to analyze. I’ve spoken to many lawyers who have gone through firm dissolutions, and a number of themes continue to recur in those conversations.

Coasting instead of growing. When things are going well, it’s easy to get comfortable and assume things will always remain good. This mindset is comforting to lawyers, who are trained to love the predictable and status quo, but it can be death to a business. Someone’s always coming for your market share. If you’re not taking active steps to expand your current book to keep pace with potential client attrition, then you’re just biding time until that book slips through your fingers.

Not addressing underproductive lawyers. Lawyers who don’t appear to be pulling their weight can be poisonous to a firm’s morale and cohesion. The high performers carrying an unfair share of the load feel dissatisfied. The low performers stress further, feeling simultaneously like everyone knows they’re dragging the firm down while also feeling like they’re waiting to be unmasked as unsuccessful frauds. I’m an advocate for attorneys treating each other, and themselves, with kindness and compassion. But compassion doesn’t mean inaction, and too many in firm management are unwilling or unable to address chronically underperforming attorneys. Firms need to be proactive and direct in these situations. Compensation cuts aren’t a substitute for substantive planning and discussion. It’s not pleasant to have tough conversations, put people on strict performance plans, or ultimately cut headcount, but doing so helps everyone in a firm feel more at ease. When the firm trusts management to actively handle internal disputes, its members can focus outward on building their practices instead of inward, defending their piece of the firm’s pie.

Diluting the equity pool. At a recent Hugh Simon lecture, he pointed out that if you adjust for inflation, Am Law 200 firms’ current revenue-per-lawyer stats are about where they were in 2008, but profits-per-equity partner have gone up over time. The market has shifted in the past decade toward constricting the equity pool, raising the compensation of the rainmakers who are keeping firms afloat in these leaner times, while cutting the comp of lower-performing or service partners. Whether we like it or not, this shift in the market price of rainmaking means firms that aren’t willing to pay to keep their biggest books happy are at risk of losing them to their competitors.

Letting expenses devour profit. Lawyers love the trappings of our practice, but too often lose sight of the costs we’re incurring until we’ve already begun to feel the bite. We lock our firms into expensive leases in swanky buildings, only to see our prices undercut by virtual firms and less flashy boutiques. We spend money on decorations and perks that look impressive, but probably don’t generate much new business. We get excited by high-revenue practices without considering how much expense those practices incur to bring that money in. Firms that don’t manage their costs often don’t realize they’ve slipped into unprofitability until it’s already too late.

Over-democratizing the firm. Lawyers are used to studying law. They don’t, usually, study market forces, business trends, or the emerging best practices of business management and accounting. Yet that has rarely prevented partners from developing passionate, vehement opinions about the management of their firm. Owners undoubtedly deserve a voice in the management of what they own, but firms that spread their agency too thin find themselves stuck in gridlock, unable to respond quickly to new challenges. Businesses need agility, precision, and clear delegations of power. Management teams that delegate all their power to committees, or that aren’t granted any real power to begin with, might as well be trying to paddle a canoe with a toothpick. They can make a big show and expend a lot of effort, but they’re not going to have much say over where they end up.

An Opportunity for Growth

LeClairRyan’s implosion is just one chapter in the much larger story of the sea change our industry is continuing to experience. We’ll learn more in the coming weeks what precisely brought this firm down, but the major strokes of the larger story are already well understood. We owe it to ourselves not to let this opportunity for learning and growth pass us by. We can pay attention to the forces around us, or let them drag us down as well. The choice, as always, is ours.

James Goodnow

James Goodnow is an attorney, commentator, and Above the Law columnist. He is a graduate of Harvard Law School and is the managing partner of NLJ 250 firm Fennemore Craig. He is the co-author of Motivating Millennials, which hit number one on Amazon in the business management new release category. As a practitioner, he and his colleagues created a tech-based plaintiffs’ practice and business model. You can connect with James on Twitter (@JamesGoodnow) or by emailing him at James@JamesGoodnow.com.

For small law practices, the risks of failing to embrace available technology include everything from a lack of mobility to a loss of financial opportunity. Think about the amount of time you spend doing things that focus on the business of law, rather than the practice of law. From invoicing to submitting expenses to tracking time, all of these tedious tasks are taking hours away from your ability to improve your firm.

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PARLIAMENTARY COMMITTEES SERIES 31/2019

Public Consultations on the Freedom of Information Bill

Parliament has in notices published today announced that the National Assembly’s Portfolio Committee on Information, Media and Broadcasting Services will hold public consultations on the Freedom of Information Bill (H.B. 6, 2019) from 19th August 2019 to 30th August 2019.

The Committee will cover various areas as follows:

Attendance

The public, interested groups and organizations are invited to attend these consultations.

But all those wearing military uniforms, signs of ranks, flags or badges and political party regalia will not have access to the public hearing.

Written submissions

Written submissions and correspondences are welcome and should be addressed to:

The Clerk of Parliament

Attention: Portfolio Committee on Information, Media and Broadcasting Services

P.O. Box CY 298

Causeway

Harare

Submissions can also be made by email through email address [email protected]

Queries

Telephone: (024) 2700181-8, 2252936-50

Maria Hlasera (Committee Clerk) Ext. 2062

1. Njovana (Public Relations Officer) Ext. 2236

Fax: (024) 2252935

About the Freedom of Information Bill

Soft copies of the Bill are available on the Veritas website [link].  Also available on the website is our e-bulletin Bill Watch 40/2019 [link] which contains comments on the Bill.

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.

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