Author: TSA Press

Given the importance of well-being to the productivity and success of attorneys and the firms they work for, it’s no wonder that Biglaw is increasingly keen on offering programs focused on well-being. But how do you get overscheduled, overstressed attorneys to make time to attend?

While the benefits of a well-being program speak for themselves, offering CLE credit can be an excellent incentive for attendance. Professional development teams must tread carefully, however: it can be tricky to get well-being programs accredited. Here are 10 tips to consider as you develop yours:

1. Ensure that your learning objectives support attorney well-being. Keep in mind that well-being CLE programs must clearly be about attorney well-being or well-being in the legal profession. Program content can’t be about general (or client) well-being.
2. Focus on awareness and recognition of substance abuse or other well-being issues that impair an attorney’s ability to perform legal services with competence — and be sure to address the consequences of attorney mental health issues. Your examples should relate specifically to law firms, the practice of law, and attorneys.
3. Well-being, mental health, and substance abuse awareness topics qualify for professional responsibility credit in many states. For accreditation purposes, tie your discussions to rules of professional conduct, raising issues that may implicate attorneys’ potential ethical obligations.
4. Reference the ABA’s National Task Force on Lawyer Well-Being. The Task Force’s 2017 report identifies lawyer well-being as “a continual process of seeking to thrive in each dimension of one’s life: Emotional, Occupational, Intellectual, Spiritual, Physical, and Social.” On its website, you can find definitions of these dimensions as well as resources and recommendations.
5. Review the benefits of well-being programs. Discuss where and how to find available help (such as Lawyer Assistance Programs (LAP)), treatment options, and the benefits, success stories, and examples of addressing well-being challenges. Discuss metrics and best practices to measure the effectiveness of well-being programs, and how to incentivize attorneys and professional staff to attend these programs. (Hint: Credit is a great incentive!)
6. While practicing mindfulness is always recommended, be aware that participants shouldn’t be asked to meditate or perform other treatments or exercises during the accredited portion of your program. States will not approve meditation sessions; some, like California, explicitly disqualify it.
7. On that note, make your program more about the topic of well-being, not the treatment of attorneys’ issues. Instructors aren’t qualified to dispense treatment, and CLE regulators aren’t in the position to evaluate it.
8. Make sure all your program materials also support attorney well-being. Regulators frequently ask to see the materials for these programs.
9. Of course, you should always read your state’s CLE rules — regulators will take different stances on well-being programs. Look to other well-being programs that have been approved for examples.
10. Still not sure? Call your state’s regulators and ask for guidance!

PLI is recognizing November as Professional Development Appreciation Month, with the free webcasts of the Empowering Professional Development Series 2020: Well-Being in the Legal Industry. Additional PLI well-being programs include the upcoming live webcast Taking Control of Your Well-Being: Mental Health and Wellness for Attorneys and the on-demand roundtable programs Mental Health and Wellness for Litigators and Addressing the Perceived Stigma — A Discussion About Attorney Mental Health.

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Practising Law Institute is a nonprofit learning organization dedicated to keeping attorneys and other professionals at the forefront of knowledge and expertise. PLI is chartered by the Regents of the University of the State of New York and was founded in 1933 by Harold P. Seligson. The organization provides the highest quality, accredited, continuing legal and professional education programs in a variety of formats which are delivered by more than 4,000 volunteer faculty including prominent lawyers, judges, investment bankers, accountants, corporate counsel, and U.S. and international government regulators. PLI publishes a comprehensive library of Treatises, Course Handbooks, Answer Books and Journals also available through the PLI PLUS online platform. The essence of PLI’s mission is its commitment to the pro bono community. View PLI’s upcoming live webcasts here.

During his presidential campaign, President-elect Joe Biden said that he supported forgiving $10,000 of student loan debt for every American. While this amount was not as generous as what Senators Bernie Sanders and Elizabeth Warren proposed during their campaigns, it did show that he understood the issue.

Since it is nearly certain that Joe Biden will be inaugurated in January, people are starting to ask what his administration’s forgiveness plan will be. Senate Minority Leader Chuck Schumer and Senator Warren have proposed a resolution calling for the forgiveness of up to $50,000 of federal student loan debt through an executive order. They cite that forgiving student loans will stimulate the economy.

Can the president unilaterally forgive federal student loans? According to an opinion from the Legal Services Center of Harvard Law School, he can. In 2019, President Trump granted student loan forgiveness for disabled veterans. An executive order might be the only option as it is uncertain whether Democrats will control the Senate in January. Even if they did, some Democratic senators may be skeptical to the idea of wholesale loan forgiveness which will be paid by taxpayers, and it only takes one no vote to prevent passage of any forgiveness bill.

Unfortunately, the coronavirus has worsened the student loan problem for many since they have lost their jobs or their usual business income. This means that most people will try to defer or skip student loan payments since food and shelter is more important.

Due to government shutdown orders, businesses must shut down or operate on a limited capacity. This means business will have to lay off employees or shut down altogether. For many people, their only source of income was the extended unemployment benefits. Business owners may have taken the SBA’s Economic Injury Disaster Loan or the forgivable paycheck protection program loan to cover expenses.

While forgiving student loans will be good news for most who are stuck with massive student loans, will Biden’s $10,000 proposal be enough? And will it stimulate the economy in light of the unique challenges presented by the coronavirus? I want to focus on the economic effect (or lack of it) of forgiveness specifically so I will skip the moral arguments for and against forgiveness as well how it will affect people of color.

First, let’s look at whether Biden’s $10,000 forgiveness proposal is enough. For those with relatively low student loan debts, this can wipe out a significant chunk of it. This can give them more flexibility with the remaining balance. It will be easier to negotiate a lower monthly payment plan or refinance with a lower interest rate. Or they may decide to cut the daily lattes and avocado toast for a year and shoot to pay off the remaining loans within a certain time.

But for those with large student loans, forgiving $10,000 will have little or no effect on their finances. Let’s suppose someone has a federal loan balance of $150,000 with the 6.8% interest rate which was the going rate a few years ago. The annual interest alone is $10,200. Similarly, for someone with $250,000 in student loan debt with a lower 4% interest rate, the interest accrual will be $10,000. For those who let interest accrue due to unemployment or making minimal payments, Biden’s $10,000 forgiveness if applied to interest first, will not affect the principal balance.

Even if most or all of the $10,000 were applied to the principal balance, only a small portion of it will be paid off. The interest accrual on the remaining balance will be almost as large and if people cannot pay the interest due to extended unemployment or underemployment, they will be back to where they were financially in a few years.

Second, will forgiveness boost the economy? It is possible that the psychological effect of forgiving loans would encourage people to spend money more freely. But to stimulate the economy, people must have money to spend. And they must be willing to spend it on goods and services, instead of doing financially prudent things such as paying down debts, saving, or contributing to a retirement account.

Forgiving loan balances in itself will not stimulate the economy. Let’s assume someone has no income or is underemployed and has enough money to only pay for fast food value meals. For this person, forgiving loans will not give him more money to spend.

Or to use a more realistic example, suppose someone is on an income-based repayment (IBR) plan and lives paycheck to paycheck spending only on basic necessities. Forgiving student loans will not provide additional money or free up funds for most of these people. So long as they are on an IBR plan, their monthly payment will likely remain the same. And if these people have no discretionary funds left after their expenses, they won’t have any money left to spend.

The coronavirus is not going away anytime soon despite news of promising vaccines. Upcoming shutdown orders due to a spike in cases nationwide will hurt businesses and put more people on unemployment. Forgiving student loan balances is not going to help. While it’s nice to see a lower balance on our student loan bills, it’s not going to put more money in people’s pockets.

I think a better idea is to refund student loan payments already made and make them forgivable. This will provide money to people that can be used to pay for goods and services which will stimulate the economy. Providing refunds is also a more fair solution because it will also benefit those who sacrificed to pay their loans in full. Finally, no limitations should be placed on the refund amount for those with higher incomes in the name of fairness if the main goal is stimulating the economy.

The student loan problem is a complicated one which has only been made worse due to the economic effects of controlling the coronavirus. While forgiving existing student loan balances sounds nice, in most cases, it will leave people in the same financial situation in a few years and isn’t likely to stimulate the economy. Stimulating the economy requires people to have money to spend. Refunding student loan payments already made will accomplish this goal while being fair to everyone.

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Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

This year has been full of surprises, but perhaps the biggest surprise of all — perhaps for those who weren’t paying attention — is the sudden interest people have in going to law school. Back in June, we that suggested that law schools should be prepared for another onslaught of law school applicants thanks to the economic downturn caused by the pandemic, just like what happened with the recession. We’re now in the middle of November, and whaddaya know, law school applicants aren’t just up — they’re way up.

The total number of law school applicants is up 32 percent compared to this time last year, and the number of applications submitted thus far is up by almost 57 percent. According to the Law School Admission Council, applications are up at 194 of the 199 ABA-accredited law schools.

But there are tons of good reasons to be interested in law school right now, aside from applicants being socially distanced from their former social lives. We’re in the middle of a healthcare crisis, we’ve seen our nation divided by political strife, we’ve been involved in protests for the fight against racial injustice in America, and Justice Ruth Bader Ginsburg, a legal hero who fought for women’s rights, tragically passed away.

“We are seeing a real surge in candidates taking the LSAT and applying. There are a lot of factors at work here. But we hear a lot of about motivation from [Ruth Bader Ginsburg]—the RBG moment,” said LSAC president Kellye Testy. “We’ve been saying our candidates have ‘really big goals.’ They are talking about racism, COVID, economic inequality, political polarization, and climate change. They are inspired to make a difference.”

And not for nothing, but the LSAT is much easier to take now given that it’s in an online format. Here’s more information on that from Karen Sloan at Law.com:

[T]he introduction of LSAT-Flex in May could also be disrupting normal application trends. The LSAT-Flex is shorter than the traditional LSAT and is given online, with people taking it at home or a location of their choosing. And the LSAT-Flex appears to be yielding higher scores. The number of applicants thus far with scores of 160 or higher is up nearly 44%. And the very highest score band—175 to 180—has more than doubled compared to this time last year.

The fact that the LSAT-Flex is shorter and can be taken at home may be a factor in those higher scores, given that takers are likely to encounter less fatigue and stress than the normal LSAT, which requires them to travel to testing centers, [Fordham Law assistant dean of enrollment Stephen] Brown said. But high scorers also tend to apply earlier in the cycle, [law school admissions consultant Mike] Spivey noted. Thus, they could be overrepresented at this point in the admissions cycle.

While we’ll have to wait and see if these application numbers hold up for the remainder of the admissions cycle, we already know that 31,000 people have signed up to take the January, February, and April administrations of the LSAT. COVID-19 may have virtually decimated the legal profession, but it sure seems like the next generation is ready to get into action.

Law School Applicants Are Way Up. Is It an ‘RBG Moment’? [Law.com]

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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.

U.S. District Judge Richard Leon of the District of Columbia does not seem pleased. And, I mean, it’s understandable.

You see, Arnold & Porter brought a case against the United States, pro bono, challenging a Department of Homeland Security policy barring New Yorkers from participating in the Global Entry program. In response to the suit, the Department of Justice said in court that no state that wouldn’t share motor vehicle records with the federal government, like New York, could participate. However, that wasn’t true. The DOJ later admitted the truth, and did away with the policy banning New Yorkers.

But now the time has come for Arnold & Porter to get paid for their pro bono work as part of the settlement ending the case. According to the terms of the agreement, A&P would get $206,500 based on its corporate billing rates (two partners and six associates reportedly worked on the matter)… provided the settlement gets judicial approval.

As I said at the top, Judge Leon is not a happy camper. As reported by Law.com, he calls out the DOJ’s “embarrassing conduct” and says the desire to sweep the entire matter under the rug is what motivated them to agree to A&P’s fees:

“It is not every day the Department of Justice and their clients have to confess to written and oral misrepresentations on the record in a high profile case! It would appear that Arnold & Porter simply capitalized—unfortunately at the taxpayer expense—on the government’s apparent desire to dispose of the case as quickly as possible,” Leon wrote in his order denying the fees.

“I certainly hope, and expect, that the department’s leadership will take the necessary steps in the future, especially in cases that involve embarrassing conduct of the type here, to ensure that the fees agreed to by the department, and ultimately paid by the taxpayer, are indeed fair and reasonable.”

Despite the government’s poor behavior, Judge Leon went on to say that A&P’s corporate rates were not appropriate in this case:

“The court finds that charging defendants for time billed at Arnold & Porter’s standard, corporate rates is not reasonable under the circumstances here,” Leon wrote. “Arnold & Porter is, according to its own website, a ‘world-class’ firm, handling complex regulatory, litigation, and transactional solutions for its corporate clients’ most complex challenges. In a case of this kind, where the agreed-upon fees will ultimately be paid by the taxpayer, applying Arnold & Porter’s standard corporate rates make little sense.”

Judge Leon noted that using the Laffey Matrix, a model fee schedule used to determine reasonable hourly rates, assuming two partners and the two highest billing associates on the case, the reasonable fees would be $82,562. That’s… a significant reduction from to $206,500 the settlement called for.

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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).

You know, as I sit here at my laptop, Donald Trump’s slow-moving coup attempt is ongoing, but floundering. The pandemic is at its destructive height, but we do have some hope on the horizon with two promising vaccines in development. Things are bad. But they look like they might get better fairly soon. So today, in the spirit of looking forward, I’m going to afford all of us a luxury it’s hard to even remember at this point: something written about neither Donald Trump nor COVID-19.

And this one’s really getting back to our roots for this column, because it’s about billionaire tax cheats, heroic civil servants, and somewhere at the center of it all, a mysterious Houston attorney whose identity is unknown.

In mid-October, a federal grand jury in San Francisco returned a 39-count indictment against billionaire Robert T. Brockman. Brockman stands accused of tax evasion, money laundering, and wire fraud, among other offenses, as part of a decades-long scheme aimed at hiding $2 billion from the IRS and bilking investors who hold debt securities in Brockman’s software company. Brockman has pleaded not guilty, and was released on a $1 million bond. According to the Department of Justice, his is the largest criminal tax prosecution ever brought.

At the same time, the DOJ announced a nonprosecution agreement with Robert F. Smith, another billionaire named “Robert,” this one of slightly more fame in that he told last year’s graduating class at Morehouse College that he would pay off their student loan debt. As part of the nonprosecution agreement, Smith admitted that he criminally evaded taxes on more than $200 million in income between 2000 and 2015 by stashing it in secret Swiss and Caribbean accounts. Smith agreed to pay more than $139 million in taxes (that he already would have owed, absent the tax evasion) and penalties to the IRS, and to forfeit $182 million in charitable contribution tax deductions.

The case of the Dos Robertos is an example of the DOJ Tax Division and the IRS Criminal Investigation team kicking ass and taking names, but it isn’t only that. It’s also just the first peek, for the public, into a deep world of money-laundering intrigue.

Smith’s payment to the IRS, while among the largest ever made in connection with getting busted for using secret offshore accounts, still comes off as a slap on the wrist to some legal commentators, who marvel at him avoiding any time for his myriad offenses. Ominously, though, for the other Robert, Smith’s nonprosecution agreement contains a requirement that he “continue” cooperating with the DOJ in other “related investigations.”

These two men have a lengthy history, with Brockman serving as the sole investor in Smith’s first private equity fund 20 years ago, an investment which allowed Smith to become a billionaire in the first place. And, it seems, for well over a decade, the Roberts may have shared a lawyer.

The Wall Street Journal reported late last month on some of the key details of Smith’s admissions in his nonprosecution agreement. Included in those details is the existence of an “unnamed Houston lawyer” who served as “a longtime adviser to Mr. Brockman.” Smith himself used this enigmatic attorney from 2000 to 2014 to put in place false paper trails to hide his accounts, according to Smith’s, ahem, account. For the dangerous task of helping Smith hide hundreds of millions of dollars from the IRS (and potentially risking the same legal exposure as his or her client in doing so), this law school-educated reverse Robin Hood was apparently paid the comparatively paltry sum of just $800,000, which works out to a smidge over $57,000 per year on average over 14 years of involvement with Smith. Really doesn’t seem worth it for one month’s worth of decent, but far from extraordinary, receipts every year.

For now, that’s all we know about this shadowy legal figure at the heart of what could certainly become the largest criminal tax conviction in U.S. history. But aren’t you just dying to learn more? Does the nature of Smith’s deal suggest government cooperation by his former attorney? Do any readers in Houston have rampant speculation as to which attorney this might be (if I have to say it, that’s a joke, don’t post any accusations publicly [but feel free to email me whatever wild theories you might have privately])?  Will “unnamed Houston lawyer” be trending on Twitter? Is an Ozark-style spinoff in development at Netflix?

Time will tell. Until it does, kudos to all the hardworking lawyers and investigators at the DOJ and the IRS for reeling in a couple real big fish, and best of luck to Robert Smith in turning over a new leaf as a cooperating government witness.

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Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

Above the Law has witnessed some things in the legal universe, but no one saw “federal judges film a music video of their Broadway tribute to fighting the global pandemic,” and yet here we are. The year 2020 has thrown us very few positives, but at least we have this moment. We didn’t have a Law Revue competition this year because… [gestures at everything], but I think this satisfies whatever itch readers might have had without that contest.

For a virtual meeting of the local chapter of the Federal Bar Association, Judge Jennifer Walker Elrod of the Fifth Circuit Court of Appeals and Judge Charles Eskridge of the Southern District of Texas performed a COVID-inspired rendition of “We’ll Be Back,” their take on “You’ll Be Back” from Hamilton on behalf of the Houston and Galveston federal judges. Hey, at this point if any Republicans are just willing to admit COVID exists they get a pass.

The song they’re parodying — for the five people left who haven’t seen Hamilton — is King George III’s theme song. Uh oh. Don’t tell the FEDERALIST Society that this kind of apostasy is happening with its own judges. On the other hand, Hamilton and the Federalists wanted to install a new monarch so maybe this hews closer to that “original public meaning” of the term than they’re usually willing to admit.

Folks, they’ve got jokes! Lots of them actually. The work that went into these lyrics is truly laudable.

But it’s not all doom and gloom
We’ll just see you on Zoom./
October, November, December, and perhaps the New Year…/
We’ll Be Back…

And Judge Elrod’s performance is great, but Judge Eskridge gets top honors for fully capturing the original King George performance with the same sort of smug carriage Jonathan Groff gave the original. There are points where he looks over at Judge Elrod — who is presumably not even in the same room — and nods and it just absolutely kills comedically.

This, by the way, is what happens when Law Revue people grow up. Over the years, I’ve established myself as the Simon Cowell of that competition because I think most of the videos we get are bad karaoke jobs strung together by amateur production values. But when I see something genuinely great I’m the first one on board.

Friends, this is genuinely great.

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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.

The American legal system is built upon the ability of two sets of highly trained and highly compensated lawyers looking at the same set of evidence and spinning entirely opposing and irreconcilable stories from it. And so when a bank, about to be hit by a lawsuit for allegedly helping a client shield collateral from some hedge fund lenders, unexpectedly repays those lenders, to the penny—inclusive of many more pennies, indeed, than the creditor client has to its name—and three years early with its own money, to boot, the obvious conclusion available is that said bank fucked up big time. And this is the conclusion upon which Citigroup, the big-time fucker upper in this case, has weaved its legal story: No sophisticated investor, such as these hedge funds, could possibly believe that as financially-troubled a company as Revlon, the creditor in this tale, would have paid nearly $900 million it did not have early, and on a completely random date, at that, without first receiving a sternly-worded court order to do so, or, you know, giving the creditors about the receive this generous windfall something of a head’s up. Surprises are apparently not the way banks prefer to do these kinds of things.

* Another class action has been filed over Nintendo controllers that allegedly drift during gameplay. Is this why I always lose at Super Smash Bros….? [Polygon]

* An attorney will not be sanctioned for leaving an allegedly harassing voicemail on the phone of a lawyer representing the Trump Campaign. [Patriot News]

* Rudy Giuliani allegedly sought to be paid $20,000 a day to work on post-election lawsuits for the Trump Campaign. [New York Times]

* The New York Attorney General is taking a stand against online retailers unfairly increasing the price of items that are in high demand because of the COVID-19 pandemic. [New York Attorney General]

* A retired New Jersey lawyer is in hot water for allegedly trying to sell a supposed cure to COVID-19. Doesn’t he remember the Carbolic Smoke Ball case? [New Jersey Law Journal]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to Vault’s 2021 practice area rankings, which Biglaw firm tops the Energy, Oil & Gas list?

Hint: The firm, founded in Houston in 1917, built the firm on this practice area.

See the answer on the next page.