Category: News Feeds

You may think online profiles are relegated to two places: LinkedIn, for your business endeavors, and Facebook, for your family and friends (read: dopamine fix). In reality, however, the web offers so much more for attorneys in terms of profile-creating, brand-building, and business-driving options. Click through for three goals that you – and your firm – should always keep in mind when designing online profiles.

As the student walked to his usual seat in the seminar, which was directly in my line of vision, the message on his flaming red hat was unmistakable: “MAGA,” or “Make American Great Again.” …

I was in the first year of a two-year fellowship as a visiting assistant professor of law. Moreover, as an African-American male, I was one of an exceedingly small number of students, faculty and staff of color in the law school. From my (progressive) perspective as a black man living in the increasingly polarized political climate that is America, MAGA is an undeniable symbol of white supremacy and hatred toward certain nonwhite groups. …

[I]n that moment, I was unsure whether the student was directing a hateful message toward me or if he merely lacked decorum and was oblivious to how his hat might be interpreted by his black law professor. I presumed it was the former. As the student sat there directly in front of me, his shiny red MAGA hat was like a siren spewing derogatory racial obscenities at me for the duration of the one hour and fifteen-minute class.

— Jeffrey Omari, a visiting assistant professor in the Center for Civil and Human Rights at Gonzaga University School of Law, in a recent commentary piece published in the ABA Journal where he described his reaction to seeing one of his students wearing a MAGA hat. To break the tension, Omari told the student, “I like your hat.” According to Omari, the student donned a mocking grin and thanked him. Omari believes that the law student was attempting to “intimidate and/or racially antagonize” him.

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.

More than a decade ago, I was visiting family in Italy when early one morning I checked my email. It was all “pull” mobile email at that time, which meant that I had to open my email client, push a button to check email, then wait about 30 seconds where messages I wrote before were sent, and the new messages were downloaded to my phone. It was slow by today’s standards, but I still remember being amazed I could send and check email remotely.

I had received an email with an urgent request from a client in California who needed a document “that night” (it was maybe 11 p.m. in California, 2 a.m. in New York, and 8 a.m. where I was in Italy). Our firm was even smaller then, and I had no hope of finding someone promptly to find and send the document. But I was on the streets of Rome. What could I do?

Well, I was somehow able to “remote in” from my Palm Treo “smartphone” to our physical server in the office, find the document, then email it from my workstation in New York — all while standing in front of an Italian caffe (they call them bars) as two older guys argued, in Italian, about how bad the Italian national team was.

It was the first time I remember realizing how you truly can be an advocate for your clients no matter where they are and no matter where you are in the world.

Fifteen years or more later, any lawyer who doesn’t realize that, and who doesn’t ensure that she can be a mobile trial lawyer wherever she is, simply is not going to be able to fight for her clients the way she should.

What does that mean, to be a mobile trial lawyer? Basic mobile phone and email is obvious, but I perhaps also obviously mean more than that. My colleagues and I at our firm know that it means having mobile editing programs on our phones and tablets so we can review and edit our papers. We have Word and similar programs on our mobile devices. We can access any documents or the hordes of data we maintain in our (triple backed up) cloud server from wherever we are in the world.

Younger lawyers do tend to be better about this, and most lawyers do know much of this. But I’m routinely surprised at hearing how lawyers don’t know how to remote into their office databases, or that they can’t write a document on an iPad, or “need paper” such that reviewing and editing documents on a tablet is verboten.

Those lawyers aren’t simply falling behind in being the best lawyers they can be. They are not as available to work for their clients as they should be.

There needs to be a balance between work and non-work, and I’m not suggesting you actually do work wherever you go at any time. But to fight and win for our clients we trial lawyers have to be ready to do exactly that.

John Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at john.g.balestriere@balestrierefariello.com.

The sober curious movement is taking off. When I first heard the term, my baby-boomer, 12-step mentality was to immediately associate it with “alcoholics” wondering what it is like to get sober. I was way off target. It is a lifestyle movement being embraced by millennials at an ever-increasing rate.  A demographic in the legal profession that has a problem drinking rate of over 30 percent. You read that right. Over one in three. As someone who has not taken a drink in over 12 years as a result of problem drinking, I do not think I am the best person to comment on the movement. I reached out to someone with more recent and relevant experience. Here are her thoughts.

Sober curious.  Curious what that means?  So was I when I first heard it.  The simplest definition that I have found is this.  “In a nutshell, identifying as sober curious means you know from experience that alcohol doesn’t make you feel great and you don’t drink it often, but you’re not willing to put an all-or-nothing label on yourself.”

I had not heard the term when I first started living it.  I love to run, and I was listening to the Spartan Up! Podcast when they had an episode with the founder of One Year No Beer.  OYNB has a simple premise — you don’t have to be an alcoholic to choose not to drink, and if you give it up for a year, you will feel amazing.

My first reaction was a properly British “pish posh,” as I was not ready to give up my nightly beer.  But given my fitness goals, I had started giving it up regularly for a short period before racing events.  I sat with the idea for a while and eventually started growing the length of time that I went without a drink.  It was amazing — I actually did feel better, despite my initial reluctance.

But then, it was time for another legal conference.  And the pressure.  Finish checking in on the first night of a conference, and where has everyone gone, to the bar of course. Walk in, and offers of drinks (or the drinks themselves) pop up left and right.

I am no teetotaler; I’m an Irish girl who loves a good strong beer.  But there is a serious issue when we have a profession that we already know is stressful, that we already know suffers widely from problem drinking and high levels of depression, then encourages and cultivates a drinking culture without any counterbalance.  The options as I see them are to participate in the ritual, stand out like a sore thumb (and make everyone think you’re an alcoholic) by publicly abstaining and drinking nothing but water, or stay home.

Megan Zavieh

The pressure to make these choices starts in law school, often amid brutal peer pressure to fit in.  My law school tenure was unique to some degree. I entered at 18 years old and was not legal drinking age until the final semester of my third year.

The 1L class regularly congregated at local watering holes for TGITs (Thank God It’s Thursday). I wanted to fit in and felt intense pressure to attend. My age was never a barrier to either my classmates or the bouncers.  Drinking culture and peer pressure don’t care about age.

It seemed that every law firm that came to court students threw a cocktail party, and every student club trying to attract members hosted an open bar.

In my experience since graduation, the Biglaw social networking culture still revolves around drinking, making it easy for summer associates to assume that everyone drinks every night. They are not too far off.

Firms love to keep associates inside the office. The firm I worked at held networking evenings with on-site alcohol (from which we were expected to return to our desks and continue working).  I remember raiding the kitchen with some other associates one ultra-late night looking for a wine bottle opener.  We drank while cite-checking a brief.

This troubling culture also extends to conferences.  The booze flows shockingly free.  I have even seen a hangover bar at morning sessions of a legal conference — complete with Emergen-C, Lifesavers, and coffee.

In attending these events, I have learned that I am not the only one with reluctance to drink.  Friends and colleagues who saw me order water often boldly started conversations with me, asking if I was pregnant or had a drinking problem (amazing what being less-than-sober will do to your filter when talking to professional colleagues).  Once I assured them I was neither pregnant nor an alcoholic, many opened up that drinking also made them feel awful, and they wish there were less of it in the legal culture.  Sober conversations at morning events included the same topic.

How can we begin to bring the cultural shift of the sober curious movement to our legal life?

I would like to see the growing sober curious movement start to take hold within the legal profession, offering a far better alternative — a new normal where events look much as they do now, but there is room on the menu for non-alcoholic options that take the stigma out of choosing not to drink.  Let the sober curious among us have a place at the proverbial bar.

1. Talk about it openly. Instead of the conversation being a heavy-handed “we need to stop drinking in this profession” message that falls on deaf ears, we need to open conversations into choosing to drink little or not at all as an issue of health.  Look how easily we talk about food allergies now; no reason we cannot be talking about a choice not to drink just as openly.
2. Remove the focus from alcohol. Events that tend to get very alcohol-heavy could be just as good with the main focus being some other aspect of them.  Clio’s Cloud Conference is a great example.  The Clio After Dark event is alcohol-heavy, but it is also a big showcase for Clio’s Reisman Awards and often for the venue that they choose to host the event.  The company really does an excellent job of encouraging attendance for reasons other than the alcohol.  Of course, attendees do manage to often take the party elsewhere across town and into the streets for lots of after-party drinking.
3. Offer the sober curious a drink. If you have ever been the one choosing not to drink at one of these events, you probably noticed that your options were water or soda.  I don’t drink soda, so my choice is usually water.  For those consuming alcohol, there is often an extensive menu of specialty cocktails, sometimes themed to the event and sounding really enticing.  The sober curious would love comparable mocktail menu. Water gets really dull and is very obvious.
4. Start early with sober curious events. This movement really needs to hit the law schools and law firm summer associate and new associate events.  Start making sober curious a viable option early, when currently excessive drinking is the cultural norm.
5. Offer early morning activities that are genuinely can’t-miss. Legal conferences have gotten onboard the wellness train by offering events like group runs and yoga at hours like 6:30 or 7:00 a.m.  They are fantastic but sparsely attended.  If early morning events catered to the broader audience who would otherwise stay out late excessively drinking, there might be more incentive to skip the whiskey.

Given the culture around drinking and the overall societal interest in sober curious, it’s time for the legal profession to open its eyes to the possibility that maybe not everyone is looking to drink, and offer more options for those who choose to abstain.

Megan Zavieh is the creator and author of “The Playbook: The California Bar Discipline System Practice Guide.” At Zavieh Law, she focuses her practice exclusively on attorney ethics, providing representation to attorneys facing disciplinary action and guidance on questions of legal ethics. Megan is admitted to practice in California, Georgia, New York and New Jersey, as well as in multiple federal courts and the U.S. Supreme Court. She podcasts on Lawyers Gone Ethical, blogs on ethics at California State Bar Defense and tweets @ZaviehLaw.

Brian Cuban (@bcuban) is The Addicted Lawyer. Brian is the author of the Amazon best-selling book, The Addicted Lawyer: Tales Of The Bar, Booze, Blow & Redemption (affiliate link). A graduate of the University of Pittsburgh School of Law, he somehow made it through as an alcoholic then added cocaine to his résumé as a practicing attorney. He went into recovery April 8, 2007. He left the practice of law and now writes and speaks on recovery topics, not only for the legal profession, but on recovery in general. He can be reached at brian@addictedlawyer.com.

The death by suicide of Sidley Austin partner Gabe MacConaill continues to rock the world of Biglaw. Not only did he die in a dramatic fashion — his body was found with a self-inflicted gunshot wound in the firm’s parking garage — but after his death, his widow, Joanna Litt, wrote a provocative op-ed titled “Big Law Killed My Husband.” That one-two punch put a lot of attention on the stresses of Biglaw and the mental health and services available in the industry.

Now MacConaill’s death has become part of a larger conversation. Financial Times has written an article about mental health issues in the workplace, and MacConaill is featured in the story. The details of the stress MacConaill was under before his death are familiar to those who know his story — and  anyone who’s spent time in Biglaw will recognize the outlines — and are rehashed for this new audience. He was working on the massive Mattress Firm bankruptcy case and other partners in his department had recently left, pushing him into a leadership role and leaving MacConaill without the support of partners. In prepping to file the Mattress Firm bankruptcy in Delaware, MacConaill worked himself to exhaustion, going to the ER with cardiac symptoms but when there were early indications his health issues were caused by dehydration, he left the hospital without being seen by a doctor so he could return to work. As FT reports, that was a critical warning sign:

That evening, Litt called one of MacConaill’s close colleagues. “I said, ‘My husband’s in crisis. What do I do?’” she remembers. “And she told me, ‘I don’t know.’ I said, ‘Who do I call?’ She said, ‘I don’t know.’ ” Litt arranged a mobile IV to come to their home, give MacConaill fluids and prepare him for the final stretch of the case. He then flew to Delaware to file. When he returned to LA, he called in sick from work, stayed at home and stopped answering his work emails.

On Sunday morning, MacConaill told Litt he was going into the office. A few hours later she received a call from [Dan Clivner, managing partner of Sidley Austin’s Los Angeles office]. They had found MacConaill’s body in the Sidley Austin parking lot, next to his car.

Dan Clivner, managing partner of Sidley Austin’s Los Angeles office, told FT that it was MacConaill’s responsibility to come forward and ask for help when he was overwhelmed:

“When you call in with something like cancer or stress, in a discreet and professional way the firm will respond,” he says. “On the first day of every orientation that I’ve done for decades, I say, ‘You have to raise your hand.’ In a place like this, you have to be able to say, ‘I haven’t done deals, I’d like to do deals,’ or ‘I’d be interested in travel,’ or ‘I’m overworked.’ You have to trust somebody.”

And, despite the criticism Litt has leveled at the firm, Clivner stands by the firm’s response to MacConail’s death:

“Simply put, I’m exceptionally proud of the way the firm handled the announcement and communication of his death without stigma, without embarrassment, without hiding it,” says Clivner. “They don’t teach you this in law school and for myself personally, and for the firm, we did it right.”

But in the FT article, Litt doubles down on holding the firm to account for the events that led up to her husband’s death, and is angry at the firm’s lack of a robust response since MacConaill died:

In the months since, she feels Sidley Austin’s response has been minimal. “The two managing partners of the bankruptcy division did not call me, email me, send me a letter,” she says. “I still haven’t heard from either partner. I also didn’t hear from the slightly senior partner who Gabe was working Mattress Firm with. None of them.”

Clivner says he is proud of the firm’s wellness program, though he admits it hasn’t change since MacConaill’s death. But FT also spoke with an anonymous source at the firm who agreed that whatever wellness program the firm has in place, folks at Sidley aren’t comfortable availing themselves of it:

“There are resources available, of course,” says a former colleague. “But there is not a culture or feeling of safety right now in that set of offices. You can have resources in place, but unless you have the right culture, people aren’t going to feel safe using them or approaching someone to ask for help.”

Litt titled her op-ed “Big Law Killed My Husband,” not the firm killed my husband, and that rings true because whatever the particulars of what led to MacConaill’s death, the attitudes are industry wide. Too often the demands of the profession mask real mental health issues, and the overachievers drawn to the law don’t feel able to avail themselves of these necessary services. The stigma is something we see throughout the legal industry, and is what needs to be dismantled to prevent more of these tragedies.

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).

One of the big points we keep making about Section 230 of the Communications Decency Act is that we totally get it when grandstanding politicians or online trolls misrepresent the law. But the media should not be complicit in pumping blatantly false statements. While I may disagree with them personally, there are intellectually honest arguments for why Section 230 should be amended or changed. I’m happy to debate those arguments. What’s ridiculous, however, is when the arguments are based on a completely false reading of the law. And no upstanding news organization should allow blatant misinformation like that. However, with all the misguided screaming about “liberal bias” in the media, newspapers like the Washington Post and the NY Times seem to feel like they need to publish blatant disinformation, to avoid having trolls and idiots accuse them of bias.

Even so, the Washington Post’s decision to publish this op-ed by Charlie Kirk attacking Section 230 may be the worst we’ve seen. It is so full of factually false information, misleading spin, and just downright disinformation that no respectable publication should have allowed it to be published. And yet, there it is in the Washington Post — one of the major news organizations that Donald Trump likes to declare “fake news.” If you’re unaware of Kirk, he’s a vocal Trump supporter, who runs an organization called Turning Point USA that appears to specialize in playing the victim in all sorts of ridiculous conspiracies… all while (hypocritically) arguing that his political opponents (“the libs”) are always acting as victims and are “training a generation of victims who are being trained to be offended by something.” And yet, it seems that it’s really Kirk who is always offended.

This Washington Post op-ed is just one example. Here, Kirk is playing the victim of (as of yet, still unproven) anti-conservative bias on social media.

By now, most conservatives are convinced that our voices are being shadow-banned, throttled, muted and outright censored online. In fact, amid protestations by groups including the Internet Association, which claims Facebook, Google and Twitter are bias free, it’s an open fact that Big Tech is run predominantly by those on the ideological left. Facebook’s founder Mark Zuckerberg and Twitter’s chief executive Jack Dorseyeven admitted this before Congress, and footage of Google’s leadership consoling one another after President Trump’s victory in 2016 indicates the same is true for them.

Many on the right have complained loudly and often of anti-conservative bias online. Unfortunately, all too often this is where our efforts stop. Once we’re ignored or dismissed long enough, conservatives seem to just shrug our collective shoulders and accept defeat. It’s this type of passivity that has allowed progressives to dominate film and television, universities and large swaths of the mainstream news media. How did they accomplish that? By fighting tooth and nail for what they believe in every vertical.

While it is true that many people who work in the big internet companies probably lean towards the Democratic side of the aisle (though not nearly as far as some make it out to be), that’s different than proving that they have put in place policies that are biased against “conservatives” (and I use that term loosely). Again, nearly every example that people trot out actually involves trolling, harassment, actual Nazis or other violations of terms of service. And while these companies sometimes make mistakes, they seem to do so pretty much across the board — which is the very nature of moderating so much content.

Separately, many of the links in Kirk’s opening above don’t actually say what he pretends they say. Professor Matthew Boedy went through the above links and put together a great Twitter thread unpacking how he misrespresents nearly everything:

The thread is a lot longer and covers many more examples. Either way, Charlie needs to play the victim, and he’s decided that the culprit is Section 230. Because he either doesn’t understand Section 230, or is deliberately misrepresenting it.

The second obstacle to the free market is Big Tech’s exploitation of preexisting laws, namely Section 230 of the Communications Decency Act that was passed by Congress in the ’90s. Social media companies have leveraged Section 230 to great effect, and astounding profits, by claiming they are platforms — not publishers — thereby avoiding under the law billions of dollars in potential copyright infringement and libel lawsuits. YouTube, for example, advertises itself as an open platform “committed to fostering a community where everyone’s voice can be heard.” Facebook and Twitter make similar claims. Let’s be clear, when these companies censor or suppress conservative content, they are behaving as publishers, and they should be held legally responsible for the all the content they publish. If they want to continue hiding behind Section 230 and avoid legal and financial calamity, they must reform.

And here’s where an editor totally should have stepped in, because almost all of this is wrong or gibberish. First off, even a cursory glance at the text of CDA 230 shows that it excludes intellectual property, such as copyright. Section (e)(2) literally says: “Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.” So what the fuck is Kirk talking about when he says that they used this law to avoid “billions of dollars in potential copyright infringement… lawsuits.” The answer is that Kirk has no idea what he’s talking about, and now seems to be repeating propaganda pushed out by “liberal” Hollywood.

As for it allowing them to avoid “libel lawsuits,” well, yes. But that’s because Section 230 is about properly applying liability to those who make the statements. We don’t blame AT&T when someone uses a phone to make a bomb threat. We don’t blame Ford when someone gets into a car accident. And we don’t blame Facebook when someone posts defamatory content. It’s kind of straightforward.

Still, where it’s really egregious is that Kirk continues to push the total myth that Section 230 allows companies to hide if they just claim they’re a “platform” rather than “a publisher.” That’s not how the law works at all. It doesn’t make any such distinction.

And here’s the really crazy thing: if Kirk got his “wish” and actually got rid of CDA 230 and made internet companies liable, his own content would likely be at the top of the chopping block. Remember, one of Kirk’s claims to fame was when he published a “Professor Watchlist” calling out allegedly “left-leaning academics” who he feels discriminate against conservatives. He can do that because that’s 1st Amendment protected speech (opinion). But if 230 is amended to require “neutrality,” well, such a list is anything but neutral. Furthermore, the risk of liability of hosting such a list would be high. Even though I’d argue that it’s protected speech, you can bet that someone might find some of the claims on the list defamatory — and thus there would be strong pressure for sites to pull it down to avoid liability.

As radio host Dennis Prager often says, if an airline permitted only those passengers holding the New York Times to board but then denied Wall Street Journal readers, we would all rightly call this discrimination and demand the airline change its policy.

This is dumb for a huge number of reasons. First of all, I don’t think we’d all rightly call it discrimination. We’d call it a business decision. Probably a bad one. Which is why no airline would ever do such a thing. Second, where exactly is the social media platform that is banning people for subscribing to the WSJ, but not the NYT? It doesn’t exist. This is such a hyperbolic, misleading example. People are being banned for harassment and trolling. Not for holding conservative viewpoints. No one’s being kicked off of platforms for calling for lower taxes, less government, or other traditionally “conservative” ideas.

In the same way, conservatives cannot win the battle of ideas if we’re marginalized or removed from mainstream culture and mainstream platforms.

This, also, is laughable. Remember, “right wing” media dominates both radio and cable television. I don’t see Kirk demanding that Fox News host more liberal viewpoints to balance out Hannity. And, once again, even in the supposedly “liberal” Washington Post, he’s allowed to post this blatantly false nonsense.

Again, the Washington Post should absolutely be willing to post different points of view, including those of Kirk and his allies. But they shouldn’t allow him to blatantly spread disinformation about what the law says and what it does. That’s just… as Kirk would say, “fake news.”

Why Is The Washington Post Publishing Blatantly False Propaganda About Section 230?

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For the purposes of tax status, the Federalist Society presents itself as a nonpartisan educational group. This claim is roughly as plausible as the NCAA’s claim to be a nonprofit organization while simultaneously running March Madness, but it’s the sort of fiction everyone agrees to accept with a wink and nod when it comes to the tax status of lobbying interests.

In reality, the Federalist Society is a well-funded political operation designed to advance contemporary right-wing policy goals through the judicial system. And to buy Chick-Fil-A for law students to own the libs.

For years, the organization has spearheaded a form of mostly white, mostly male affirmative action by offering access to the upper echelons of legal industry power to any law student willing to troll women, minorities, the poor, the LGBTQ community, or immigrants by granting them fast-tracked status to judicial clerkships with like-minded jurists and, with any luck, an opportunity to convert those clerkships into another generation of judges.

A key component of this revolving door was the organization’s ready access to a plethora of friendly judges willing to lend star power to the group’s events. It was always a little unsavory and smacked of a potential ethical violation. Now a new opinion released to little fanfare may actually put some teeth to the problem.

Judge James Donohue, a former federal magistrate, highlighted this new ethical opinion in the Washington Post this week:

For many years, the Code of Conduct committee ducked the issue of judicial participation in the Federalist Society, in part, it seemed, because many powerful judges… either have been or are associated with the organization.

The committee now appears to have drawn a line with its issuance of advisory opinion No. 116 expanding the scope of prohibited political activity. The Federalist Society is not mentioned by name, but the opinion is directed to the propriety of participation by judges in programs or membership in groups engaged in public-policy debates.

Opinion 116 actually came out in February, and while few have focused on it, the committee appears to have taken direct aim at the Federalist Society’s whole business model, banning judges from appearing at certain events:

The prohibited political activities include those involving “hot-button issues in current political campaigns” or that are “politically-oriented” or have “political overtones.” Public perception also plays a vital role, as the opinion bars judges from participation that would “give rise to an appearance of engaging in political activity” or “would otherwise give the appearance of impropriety.”

Does that sound like any originalist summer camp you know? That’s a pretty spot-on description of the Federalist Society right there, but the committee didn’t stop there, adding another layer to their indictment of judges cavorting with the group:

The committee also warned judges that they should stay away from groups “where the funding sources are unknown or likely to be from sources engaged in litigation or political advocacy.” The New York Times noted of the Federalist Society’s 2015 annual report, the organization “discloses who contributes most of its money. But it also takes anonymous contributions, from players including the Mercer family, which was a major backer of Donald Trump.” The annual report listed 14 anonymous donors on the “platinum” level — those giving $100,000 or more.

Hopefully, that FedSoc annual meeting airfare was refundable for all you judges out there.

And what of the most prominent FedSoc stooges in the American court system: Roberts, Alito, Gorsuch, and Creepy McBeermeister? The Code of Conduct for United States Judges still doesn’t apply to the Supreme Court.

The Federalist Society just became a no-go zone for federal judges [Washington Post]

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.