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Kinney Recruiting is a market leader in helping attorneys with relocation job searches, whether to the opposite coast, the other side of the world, or your hometown. Learn more.

Told You So


Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security.

Once You’re Engaged, The Fee Should Not Matter (To You, At Least)

(Image via Getty)

At our firm we handle a lot of complex litigation, very often on a risk-sharing basis. That means we are willing to reduce the hourly rates we charge in return for a contingency fee if we obtain a good result for the client, as agreed upon in some fashion in our engagement letter. Clients like this since they see us as in it with them: if they win, we do. If they don’t achieve what they sought, we get paid less.

Many business clients have commented to me over the years that when dealing with lawyers who don’t bill this way — when dealing with lawyers who bill by the hour way, as is typical — such clients think that these lawyers have little concern for the fees the clients have to pay, or the result. Indeed, many business clients tell me that they think these lawyers are just trying to bill as much as they can to increase their bill.

Goodness knows I’ve seen churning and more than once have been adverse to a well-resourced firm where they simply seemed to pile the bodies onto the case and litigated every tiny thing even when I could see no tactical or other benefit to their client. Overbilling (as opposed to inaccurate billing) certainly happens. Whether it does as frequently as my clients have complained is beyond the scope of this short article. But I acknowledge it happens.

As lawyers we must be mindful of all the costs that our clients incur in a litigation, and legal fees are only one of those costs. Part of being good counsel is determining: is it really worth the salt to fight? I find myself frequently advising prospective plaintiffs or claimants to consider alternatives to litigation or arbitration. I likewise find myself advising defendants to consider paying something even when they believe they have done nothing wrong, simply to put a litigation behind them. Costs — including not just money, but time — matter, and as advisors we must keep this in mind with regard to the counsel we give our clients.

But what we cannot — or at least should not — do is let our own fee interest dictate our advice, or how we fight. I’m not saying we’re to be taken advantage of — we’re not. But that’s different than allowing our fee interest to dictate how hard we fight, or not, or what tactical suggestions we make to the client. As noted above, our risk-sharing clients in fact think we do do that, and like us for it. Risk sharing helps in client relations. We must also be mindful of our higher ethical and professional obligations to give the appropriate counsel to the client, and, as they say, zealously advocate for the client, regardless of the fee.

Lawyers will generally litigate a smaller case differently than a big case, and, indeed, we often should. But that’s because the costs and results might be different to the clients between those cases. We cannot let our fee interest dictate how we advise our clients, or how we try to win for them.


john-balestriereJohn 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.

Judge Not Impressed By Parler’s Attempt To Force Amazon To Put It Back Online

It appears that Parler’s antitrust lawsuit against Amazon for suspending its AWS account isn’t off to a very good start. In an emergency hearing on Thursday to see whether or not the judge would order Amazon to turn AWS back on for Parler, the judge declined to do so:

U.S. District Judge Barbara J. Rothstein in Seattle said during a hearing Thursday she’s not inclined to order Amazon to immediately put Parler back online. Instead, she expressed interest in taking a more measured approach to deciding whether she should order a permanent injunction to restore web-services to Parler.

Having spoken to two people who followed the hearing, it sounds like the judge did not make an official ruling yet, but said she will quickly. Another comment I heard from people who listened to the hearing was that Parler’s lawyer did not seem to understand some fairly basic concepts regarding how all of this works, which does not bode well for his client. Also, Amazon’s lawyer has said that they told Parler that the they would allow the site to return to AWS if it put in place a real content moderation strategy — which again leans into the fact that they suspended, rather than terminated Parler’s account (this has become a key point in the lawsuit, as Parler argues that termination violates their contract, while Amazon says the account was merely suspended, which is different from terminated).

One other point: Parler’s lawyer apparently told the judge that Parler could not afford to litigate this case all the way to judgment (in the context of arguing that there would be irreparable harm in not turning the site back on immediately, when asked why any harm couldn’t later be dealt with by an award of damages). I find this amusing, because just last week (which feels like a century ago, of course), Parler insisted that it didn’t need Section 230 at all and CEO John Matze was saying that Parler was big enough to fight off any lawsuits that would come about without 230. At the time, I pointed out to him that while his backers, the Mercer family, are wealthy, they’re not that wealthy.

Still, it’s pretty stunning to go from “eh, we can handle such lawsuits if we’re liable for our users postings” to “uh, we can’t afford this lawsuit we filed to keep our site alive” in just one week.

Judge Not Impressed By Parler’s Attempt To Force Amazon To Put It Back Online

More Law-Related Stories From Techdirt:

Sheryl Sandberg Makes Disingenuous Push To Argue That Only Facebook Has The Power To Stop Bad People Online
Jack Dorsey Explains The Difficult Decision To Ban Donald Trump; Reiterates Support For Turning Twitter Into A Decentralized Protocol
House Lawmakers Question Telecom Giants Over Broadband Price Gouging During A Pandemic

Biglaw Partner Arrested On Domestic Violence Charge

This morning, American Lawyer reported that Joshua Schiller, son of Boies Schiller’s Jonathan Schiller, was arrested in Ross, California, last night on a domestic violence charge.

That said, Schiller’s attorney is confident that the charges will be dropped quickly.

“I fully expect the charges to be dropped. This was a misunderstanding. There was no instance of domestic violence,” Joshua Schiller’s attorney, California-based defense attorney Douglas Horngrad said in a statement.

Horngrad also provided a joint statement from Joshua and Melissa Siebel Schiller: “This is a private matter between us. We love and respect each other. We are partners and will move beyond this together.”

Still, it’s another unfortunate headline for a firm in the midst of an organizational shakeup that’s seen mass departures as it sets a new direction after years of expansion. Schiller is serving as West Coast administrative partner as the firm’s California operations were curtailed over the last year.

Business Insider reported that Schiller was removed from a matter in 2017 based upon “inappropriate comments” to an associate, but this is the first such domestic violence incident.

When reached for comment, the firm said:

The Firm has been made aware of recent events related to our partner, Josh Schiller.  While we have been informed by him and his wife that this was a misunderstanding, the firm will be conducting its own review to better understand what happened. While that review is ongoing, Josh has asked for a leave of absence to focus on his family, and we have agreed to give him this time.

Boies Schiller Partner Joshua Schiller Arrested on Domestic Violence Charge [American Lawyer]


HeadshotJoe 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.

Stat Of The Week: A Dearth Of Boardroom Climate Expertise 

As 2020 slowly fades into the rearview mirror and new data reveals the year was tied for the hottest on record, corporate boards appear ill-equipped to respond to risks stemming from the climate crisis.

Bloomberg noted Wednesday that only 6% of 1,188 directors at 100 of the largest U.S. companies had “relevant credentials” in environmental protection, citing a study by the Stern Center for Sustainable Business at New York University. 

NYU’s Tensie Whelan told the publication that almost all corporate boards lack expertise in “financially material ESG matters” like climate change, employee diversity, and supply chain scandals, later adding:

Without board members who have a strategic understanding of the issues, the board won’t know the questions to ask or even understand that the potential risks might exist.  

2020 Tied For Warmest Year On Record, NASA Analysis Shows [NASA]
Many US Corporate Boards Don’t Fully Understand The Climate Crisis [Bloomberg]
US Corporate Boards Suffer from Inadequate Expertise in Financially Material ESG Matters [NYU Stern Center for Sustainable Business]


Jeremy Barker is the director of content marketing for Breaking Media. Feel free to email him with questions or comments and to connect on LinkedIn

A Country, And A Mind, Divided: Two Posts In One

(Photo by Alex Wong/Getty Images)

My mind is cleaved by the events of the day. Please read both of the columns that I drafted.

Here’s today’s first column:

Amerika: A Fable

Once upon a time there was a president with the temperament of a 6-year-old, serving as the executive of a powerful country. This president thought police should be tougher when arresting criminals. He threatened North Korea with “fire and fury.” He said that he was glad to have the guys with guns in his camp.

I bet he liked vigilante movies.

This president riled up the country for four years. He gave a speech about the other party stealing an election and about how the other party would destroy the country. He said people had to fight for what they believed in. Some of his supporters stormed the Capitol.

For the inauguration of the next president, 20,000 members of the National Guard protected the Capitol. That’s more members of the military than Amerika had deployed in Afghanistan and Iraq (combined) at the time. The guardsmen were issued weapons.

But the National Guard made a mistake. It did not monitor the social media accounts of its members. The National Guard skews white, lower-middle-class, male, which was where the president found much of his support.  During the protests on inauguration day, 10,000 armed guardsmen decided that instead of obeying the chain of command, they would support the protestors.

Thus ended Amerika.

Here’s today’s second column:

Time For A Pause

I don’t want the government to silence you. I want everybody to voluntarily choose to silence themselves.

For just two years, I want the loonies of the left to stop talking about “defunding the police.” They can talk about “reforming the police.” If a speaker or a co-worker says or does something insensitive or offensive, do not boycott or fire the person. Explain to the person what he or she did wrong, and hope for better next time. Don’t worry about who chooses to urinate in which bathroom. Either bathroom is fine. Just for two years.

For just two years, I want the loonies of the right to stop calling members of the other party “socialists.” They can talk about “progressives.” Don’t say that the people in the other party will destroy your country. Don’t say that people in the other party believe in riots. You can say the other party believes in political protests, and some small groups within those protests sometimes riot. Just for two years.

During those two years, I want legislatures to be guided by nonpartisan or bipartisan committees that think hard about reform. The legislatures should agree to adopt the recommendations made by the committees.

Can we engage in redistricting that makes most Congressional districts competitive, so that radicals of the left or right will lose elections, and moderates will win?

Should we mandate or give a tax credit for voting? Politicians today run negative ads to depress the turnout of the opposing party’s supporters on Election Day. Perhaps, if people were required or encouraged to vote, politicians would stop campaigning this way.

States should experiment with “top-two primary” systems, in which all candidates are listed on the same primary ballot, and the top two candidates, regardless of party, advance to the general election.

And so on, including ideas from people much smarter than me.

Let’s enact those reforms, so that our country leans to the middle and becomes more governable.

And then, after two years, we can go back to shouting.

I promise.


Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

Judge Saves United States Asylum Law, With More Than A Little Snark

Nobody cares about immigration right now. With the president having recently incited a riot, leading to his second impeachment, and literally one million new COVID-19 infections this week, that’s probably fine.

That said, these distractions make it an excellent time for news to fly under the radar. So I had a look around, and sure enough, a federal judge pretty much saved asylum law last week.

The case was about a new rule on asylum from the Trump administration, made final in December after the feds ignored all the public comments about it. The stated goal of the new rule was to “streamline” asylum proceedings, which it achieves by limiting who can get asylum. Immigrant advocates call it “Death to Asylum,” and that’s not really an exaggeration. The rule would create a presumption against granting asylum based on claims of:

  • “interpersonal animus or retribution,” which is the definition of persecution
  • gender, which neatly excludes both victims of domestic violence (who are overwhelmingly female) and trans people
  • a slew of conditions related to organized crime, which are clearly aimed at excluding asylum seekers fleeing gang-controlled Central America
  • extortion, which is also a thing organized crime does

The rule would also deny asylum to people who spend more than two weeks in a third country before reaching the United States, and allows judges to reject some asylum applications without bothering to hold a hearing.

So of course people sued — two times. These suits make the usual Immigration and Nationality Act and Administrative Procedure Act arguments. However, both suits were filed in late 2020, after which multiple courts had already ruled that Acting DHS Secretary Chad Wolf was not lawfully appointed. I’ve written about this before, and I can’t stop mentally cackling about it, because it’s such an unforced error. The tl;dr is that there are constitutional and statutory rules about who succeeds a Senate-confirmed DHS Secretary, and Trump didn’t follow them, twice, so Wolf has no authority to make any rules. You don’t need to take it from me; the GAO said as much in August.

Immigration nonprofits racked up four victories on this basis in 2020. On January 8, Judge James Donato of the Northern District of California made it a fifth, granting a preliminary injunction against the new asylum rule. And he made it clear that he was not pleased:

If the government had proffered new facts or law with respect to that question, or a hitherto unconsidered argument, this might have been a worthwhile exercise. It did not. The government has recycled exactly the same legal and factual claims made in the prior cases, as if they had not been soundly rejected in well-reasoned opinions by several courts… . This is a troubling litigation strategy. In effect, the government keeps crashing the same car into a gate, hoping that someday it might break through.

According to Courthouse News, Donato also didn’t mince words at a hearing the day before: “The government keeps running the same 8-track tape and the sound is not getting better.” (An 8-track is an analog format for storing recorded music, kids.) He also compared Wolf to “a squatter in a rental building.” When a DOJ attorney argued that the judge should look at former DHS Secretary (and documented liar) Kirstjen Nielsen’s intent to change the order of succession, even though she didn’t actually do it, the judge said, “You don’t keep peddling the same bucket of fish until someone buys it.”

The good news is that most of these people will be taken out like the trash they are next week, and the Biden administration is free to cancel the rule. But they won’t have Wolf to kick around anymore, because he resigned as Acting Secretary on Monday. One of the stated reasons was that court rulings challenged his authority, so here’s a high-five to the public interest lawyers who made that possible. Uno por uno.


Lorelei Laird is a freelance writer specializing in the law, and the only person you know who still has an “I Believe Anita Hill” bumper sticker. Find her at wordofthelaird.com.

Rod Rosenstein Is Real Sorry About All Those Kids Separated From Their Parents. Oopsies!

(Photo by JIM WATSON/AFP/Getty)

“We do not have a policy of separating families at the border. Period,” former Homeland Security Secretary Kirstjen Nielsen tweeted indignantly on June 17, 2018. Which was true, but only in the most literal sense. What DHS and the Justice Department did have was a policy to arrest virtually everyone who tried to enter the country between border stations, automatically rendering any children apprehended “unaccompanied” and forcing them into state custody.

“I have put in place a ‘zero tolerance’ policy for illegal entry on our Southwest border. If you cross this border unlawfully, then we will prosecute you. It’s that simple,” then-Attorney General Jeff Sessions announced on May 7, 2018. “If you smuggle illegal aliens across our border, then we will prosecute you. If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law.”

Which might have left the public with the impression that this was a measure meant to combat human trafficking. But later that month on a phone call with U.S. Attorneys, the AG was more clear. “We need to take away children,” he said, leaving no doubt that his intention was to disincentivize immigration with the threat of seizing migrant children.

Yesterday the Justice Department’s Inspector General released a scathing report on the family separation policy officially in place between April 6 and June 7, 2018. Prior to that, U.S. Attorneys had endeavored not to arrest adults crossing the border with minors, and there was no preparation for an abrupt policy shift that would necessitate taking thousands of children into government custody.

DOJ leadership, and the OAG in particular, did not effectively coordinate with the Southwest border USAOs, the USMS, HHS, or the federal courts prior to DHS implementing the new practice of referring family unit adults for criminal prosecution as part of the zero tolerance policy. We further found that the OAG’s expectations for how the family separation process would work significantly underestimated its complexities and demonstrated a deficient understanding of the legal requirements related to the care and custody of separated children. We concluded that the Department’s single-minded focus on increasing immigration prosecutions came at the expense of careful and appropriate consideration of the impact of family unit prosecutions and child separations.

The DOJ ignored the warnings from the Western District of Texas, where a similar “zero tolerance” program in 2017 encountered difficulty reuniting families, and instead the AG “focused solely on the increase in illegal entry prosecutions resulting from the El Paso Initiative and did not seek readily available information that would have identified for them the serious issues that arose as a result of the prosecutions of family unit adults and the corresponding child separations.”

Today, there are 611 children still not reunited with their families — an outcome which was entirely predictable based on information known to the DOJ and DHS before the family separation policy was implemented nationwide.

Jeff Sessions, who refused to cooperate with the inquiry, comes off second only to Stephen Miller in his fanatical zeal to inflict pain on migrants. But Sessions’ deputies at the DOJ look pretty awful, too.

Justice Department attorney Gene Hamilton, a close ally of White House Counselor Stephen Miller, blamed Homeland Security for the policy, telling the IG, “If Secretary Nielsen and DHS did not want to refer people with minors, with children, then we wouldn’t have prosecuted them because they wouldn’t have referred them. And ultimately that decision would be between Secretary Nielsen and the president.” Which conveniently ignores the fact that Sessions was the driving force behind the policy, and that Nielsen told the president it would be logistically impossible and maybe illegal.

But in some sense, you know what you’re getting with avowed xenophobes and dinosaurs from a bygone era, already shuffling toward the exit. It’s former Deputy Attorney General Rod Rosenstein, who knows it’s wrong but still marches loyally forward doing this horrible shit, who breaks your heart.

Here he is defending his complete indifference to DHS’s capacity to take care of the children in its custody and eventually reunite them with their parents, because “My approach was to trust them and presume that their folks were going to administer it as they should, and I thought it was not for me to micromanage someone else’s business.”

You would expect DHS and HHS to be able to manage the children who were entrusted to them. I think that’s something they should have considered. They should have said, “Hey, there’s problems if we do this, we’re going to lose track of the kids and we’re not going to be able to reunify the kids.“ That’s an issue that they should have flagged. I just don’t see that as a DOJ equity.

Here’s John Bash, the U.S. Attorney for the Western District of Texas, explaining in an email to his staff that he just got off the horn with Rosenstein, who ordered him to take babies into custody no matter how young.

I just spoke with the DAG. He instructed that, per the [Attorney General’s] policy, we should NOT be categorically declining immigration prosecutions of adults in family units because of the age of a child. In other words, our directive is that if [the Border Patrol] refers a single parent of a child of any age to us (or both parents of a child of any age), we should not decline prosecution absent case-specific special circumstances (e.g., the child is seriously ill, the child speaks only a native language, etc.). I had understood that [the Border Patrol] itself had a policy of not referring parents to us when doing so would separate children under 5 from the parents. But apparently [the Border Patrol] did so yesterday in El Paso in two cases, and we declined per our understanding of the policy. Under the directive I just received from the DAG, however, those two cases should not have been declined.

Rosenstein professed to be shocked that Bash would have interpreted this as curtailing his discretion not to prosecute parents if it would involve the government taking custody of young children, or non-Spanish speaking youths who would have no way of communicating with their caregivers.

“If somebody got the idea that they were supposed to be just like a soldier, prosecuting every case without regards to the facts, that didn’t come from me, and if you look at Bash’s emails, he says, consider case-based circumstances,” he told the IG.

“Since leaving the Department, I have often asked myself what we should have done differently, and no issue has dominated my thinking more than the zero tolerance immigration policy,” Rosenstein said in a statement released yesterday. “It was a failed policy that never should have been proposed or implemented. I wish we all had done better.”

Mistakes, it seems, were made. This policy should never have been implemented. By whom? Well, Rod Rosenstein cannot say. But he thinks about it a lot and wonders what, if anything, someone, somewhere could have done differently.

Justice officials respond to report on family separation by blaming Trump, expressing regret [NBC]
Review of the Department of Justice’s Planning and Implementation of Its Zero Tolerance Policy and Its Coordination with the Departments of Homeland Security and Health and Human Services


Elizabeth Dye lives in Baltimore where she writes about law and politics.