Author: TSA Press

Borrowing from the late Kenny Rogers, sometimes you’ve got to know when to fold ’em.

Last week, the NYSBA participated in a call designed to provide comfort to emergency diploma privilege advocates that the upcoming online bar exam will not be the unmitigated disaster that everyone following the administration of online exams so far in 2020 suspects it will be. During the call, the NYSBA, which performs a supporting role in the process run by the Board of Legal Examiner listened as the Executive Director of BOLE based his confidence in the upcoming two-day online exam on a smaller, non-proctored, offline test before throwing shade on the online testing guru who declared the exam infeasible and wrapping up by demonstrating that he didn’t even know the techniques used to pass the test he’s running.

This would be the time to fold. The NYSBA decided to raise.

In a letter to representatives of the New York State Law Graduate Coalition & United for Diploma Privilege New York, NYSBA President Scott Karson responded with his takeaway from the meeting. The stakes for this letter were reasonably high because in a world of declining bar association membership, the diploma privilege advocates had proposed a boycott of the NYSBA if it failed to use its position of authority to advocate for a better emergency plan.

The letter is six paragraphs long and the first four — taking up the entire first page — say nothing about the bar exam other than mentioning that the meeting happened and instead outlines how big the NYSBA is and how much it’s tried to convince people to hire graduates left in the cold by the coronavirus. When the first two-thirds of a letter is spent avoiding the point, it’s a red flag to the reader that something is amiss. Bringing us to the first — and only — actually responsive paragraph:

As I said during our discussion, I feel very strongly that the chaos created by the virus cannot be allowed to undermine the vital protections of the public interest provided by ensuring that lawyers licensed in New York are competent to serve. This is particularly important for clients who are members of vulnerable communities and have little or no familiarity with the reputations of lawyers and law firms. These clients rely on the license as proof of an attorney’s competence and ability to represent them fully and fairly.

This of course glosses over the most important issue, which is that there’s no reason to believe this exam will even work! The “vital protections of the public interest” are already compromised when half the examinees can’t log in and because no one can take notes on fact patterns (because what lawyers use pens or paper anyway?) the test loses all semblance of order. The discussion on the table is no longer between the time-tested bar exam and diploma privilege, it’s between diploma privilege and a system that’s meant to give a test in about a month that hasn’t gotten through a test unscathed yet.

It’s also a problem that “vital protections of the public interest” is a hollow defense of the bar exam as a concept. We have hard data that the existence of an exam has no discernible impact on the public’s safety. And while that’s enough to raise questions about the exam in ordinary times, as the first page of the letter lays out in detail, these aren’t ordinary times. Going forward with a woefully compromised test without a compelling justification is just foolhardy. Buzzwords just don’t cut it.

And citing vulnerable communities? The people ripping off these communities now are all licensed. The access to justice gap in New York is staggering and the NYSBA itself expects it to get even worse in the rural areas of the state. If the bar exam isn’t protecting them now and reduces the number of available attorneys to meet the need, it’s hardly a ringing endorsement for pushing ahead with it during a pandemic. Deploying this “widows and orphans” rhetoric to appeal to pathos has a hallowed place in trial advocacy, but in a showdown of written work, it falls flat.

The NYSBA tweeted out its letter listing the applicants who raised the issue. It appears as though they’ve since deleted the tweet. Whether it was intended or not, that certainly gave the appearance of trying to publicize the “troublemakers” in some sort of effort to chill others from raising issues with the current half-cocked bar exam plan.

Not exactly the look the NYSBA wants if it’s trying to avoid a boycott.

Earlier: Bar Examiner Offers Less Than Inspiring Answers In Online Exam Defense

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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.

We love a salary trend here at Above the Law! And when the news is good, so much the better. After salary cuts became the new norm in the springtime of COVID, now that summer’s here and autumn is around the corner, quite a few firms have decided that those cuts aren’t needed anymore, or at least they no longer need to be as severe as the initial haircut.

Back in May, Managing Partner Steven Sonberg of Holland & Knight announced staff furloughs and salary cuts for partners, associates, and staff. Cuts to partner draws averaged 25 percent at the firm, on a progressive scale. Associates, counsel, and senior professionals saw compensation cut by 17.5 percent. Staff making $75,000-$150,000 had a 10 percent pay cut and staff making $150,000+ got a 15 percent reduction.

But now, as reported by Bloomberg Law, Holland & Knight has walked back at least some of the cuts for all employees:

However, the firm said that it had restored 30% to 50% of the original 17.5%, 15% or 10% cuts at the end of June, with all associates receiving a 30% restoration of their salaries. The firm is currently evaluating a further restoration, a spokesperson said.

Let’s hope it’s only a matter of time before full salaries are restored.

If your firm or organization is slashing salaries or restoring previous cuts, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

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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).

Last week, the DEA dropped a bomb on the hemp industry when it released an Interim Final Rule (the Rule) on hemp and hemp-derived cannabinoids (collectively referred to as Hemp).

Although the Rule provides that it “merely conforms DEA’s regulations to the statutory amendments to the CSA that have already taken effect, and it does not add additional requirements to the regulations,” the Rule improperly criminalizes intermediary hemp, which is partially processed hemp extract — also known as “wet hemp” — not intended for consumption or end use consumers. This attack on intermediary hemp is hugely problematic in that wet hemp is a vital component of all finished Hemp products.

The Agriculture Improvement Act of 2018 (the 2018 Farm Bill) legalized hemp by removing the plants, its derivatives, extracts, and cannabinoids from the definition of “marihuana” under the Federal Controlled Substances Act (the CSA). However, the 2018 Farm Bill did not address the processing of hemp, neither did the USDA’s Interim Final Rule that regulates the cultivation of hemp. This regulatory gap regarding the processing of hemp is at the center of this Rule and why it has the potential to destroy the Hemp industry.

The 2018 Farm Bill defines hemp as: the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” (Emphasis added).

Accordingly, it is clear that the plant, its derivatives, extracts, and cannabinoids are no longer schedule I controlled substances. Moreover, if derivatives, extracts, and cannabinoids are lawful, it logically follows that it is lawful to process the hemp plant into such derivatives, extracts, and cannabinoids. Yet, the Rule ignores this nuance and provides:

[T]he definition of hemp does not automatically exempt any product derived from a hemp plant, regardless of the Δ9 -THC content of the derivative. In order to meet the definition of “hemp,” and thus qualify for the exemption from schedule I, the derivative must not exceed the 0.3% Δ9 -THC limit.

The definition of “marihuana” continues to state that “all parts of the plant Cannabis sativa L.,” and “every compound, manufacture, salt, derivative, mixture, or preparation of such plant,” are schedule I controlled substances unless they meet the definition of “hemp” (by falling below the 0.3% Δ9 -THC limit on a dry weight basis) or are from exempt parts of the plant (such as mature stalks or nongerminating seeds). See 21 U.S.C. 802(16). As a result, a cannabis derivative, extract, or product that exceeds the 0.3% Δ9 -THC limit is a schedule I controlled substance, even if the plant from which it was derived contained 0.3% or less Δ9 -THC on a dry weight basis. (Emphasis added).

Any hemp derivative, extract or product must go through an extraction process. This extraction process inevitably results in the creation of “wet hemp” and in an increase in Delta-9 THC concentrations in excess of 0.3%, even if fleetingly. Therefore, it is reasonable to infer that Congress intended to legalize “wet hemp.”

Nevertheless, the Rule disregards this fact and suggests that hemp processors are handling a schedule I controlled substance, even if the finished product contains no more than 0.3% Delta-9 THC. Consequently, the Rule creates significant criminal risk for anyone processing hemp.

In light of the DEA’s historical control of cannabis and its lack of enthusiasm in the legalization of hemp – USDA Secretary Sonny Purdue has repeatedly blamed the DEA for interfering with the development of hemp regulations — it is clear that the Rule is a pretext for the DEA to maintain its authority over cannabis.

Ultimately, the Rule and the issues raised in this blog post reveal that statutory ambiguities should be addressed by Congress or by the courts before the DEA gets to adopt such regulations. As such, hemp stakeholders should comment on the Rule through October 20 and reach out to their elected officials to help them understand the importance of this issue and the need to clarify the legality of intermediary hemp to help the Hemp industry follow its course and succeed.

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Nathalie practices out of Harris Bricken’s Portland office and focuses on the regulatory framework of hemp-derived CBD (“hemp CBD”) products. She is an authority on FDA enforcement, Food, Drug & Cosmetic Act and other laws and regulations surrounding hemp and hemp CBD products. She also advises domestic and international clients on the sale, distribution, marketing, labeling, importation and exportation of these products. Nathalie frequently speaks on these issues and has made national media appearances, including on NPR’s Marketplace. For two consecutive years, Nathalie has been selected as a “Rising Star” by Super Lawyers Magazine, an honor bestowed on only 2.5% of eligible Oregon attorneys.  Nathalie is also a regular contributor to her firm’s Canna Law Blog.

Leon Black doesn’t want to talk about Jeffrey Epstein, and if you were the Apollo Global Management co-founder, you wouldn’t either: Having a two-decade-long personal and professional relationship with a notorious convicted sex criminal whose business bona fides are questionable at best is never a good look, even if you pinky swear the pedophile never got anywhere near Apollo itself. It’s especially troubling when you claim to have been “completely unaware” of the allegations against your buddy when you maintained your ties to him long after the aforementioned conviction, however gingerly it was handled by future Trump Administration Cabinet officials.

* A Pennsylvania golf course has defaulted in a lawsuit alleging illicit discrimination. Maybe they knew it would be a “fore”gone conclusion they’d lose… [Patriot News]

* The New York Attorney General has sued the Trump Organization over financial investigations into the company. [Forbes]

* Apparently, the ongoing pandemic is making it difficult to tell Scott Peterson his death penalty sentence has been overturned. [Fox News]

* The Attorney General of the Virgin Islands has subpoenaed billionaire Leon Black and his business in a probe related to Jeffrey Epstein. [CNN]

* The social media app TikTok has sued the U.S. Government over a ban recently announced by the Trump Administration. Did they serve process by video? [CNBC]

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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!

We told you about the American Lawyer’s Midlevel Associate Survey earlier today, but they also break the rankings out by specific offices. Which New York office of a Biglaw firm is ranked best in midlevel associate satisfaction in the Big Apple?

Hint: The firm got a 4.878 out of 5 in overall satisfaction for their New York outpost, which is one of 20 offices the firm has worldwide.

See the answer on the next page.

Kinney Recruiting is working with an excellent firm on its search for a junior to mid-level litigation associate to join its DC office.

The ideal candidate will have prior law firm, government, or clerkship experience.

A background with bankruptcy and/or creditors rights is preferred. This is a great opportunity to join a healthy and thriving practice and work with partners at the top of their field. To learn more, please apply to this posting, or submit your resume to jobs@kinneyrecruiting.com.

“Do VERY FEW projects EXCEPTIONALLY well. No one will remember how much work you have done. They will NEVER FORGET the ONE thing you effed up.” I received this well-intentioned advice frequently as a summer associate when I split my summer between two well-known national law firms after my 2L year.

But how do you figure out what area of law you like best if you are limited in what you’re exposed to?!

How do you find your place in the vast legal universe if you only see a minuscule fraction of it?!

How do you decide where to focus for 5, 10, 20 years, perhaps your entire career, if you don’t test-drive it?!

If your law school is less than practical and your summer clerkship strategy is to do as few projects as possible, it seems like clairvoyance is a must-have skill for a successful future lawyer. Maybe they should add a section for it on the LSAT!

When it comes to summer clerkships and internships, which is a better strategy – doing a few things exceptionally well or many things 95% there? I crowdsourced this question to my followers.

The Pragmatists

Sean Rayani, commercial contracts senior manager at Twilio, said, “As a lawyer or legal professional, you will not have the luxury to just do a few things when you start practicing (especially if you start in-house at technology companies in their infancy).  There will be times where you will have the kitchen sink thrown at you, and you will have to get it all done.”

He explained, “Inevitably, you can not do everything perfectly if you have an overflowing plate, but you will have to do the best you can. Reenacting what you will experience once you start practicing during a summer clerkship, in my opinion, serves as a really good training and expectation setting for the legal profession generally.”

Likewise, Sarah Feingold, co-founder of the Fourth Floor and former GC of Etsy and Vroom, advised, “I say — try a lot of things, talk to a lot of people, and then prioritize, focus on doing a few things well, and periodically take a step back to reevaluate how your career is proceeding.”

The Go-Getters

Jamie Szal, Maine state and local tax attorney at Brann & Isaacson, said, “My law school was structured on a co-op model: normal 1L year, then switch to 4 alternating quarters each of class and internship. That model spat out graduates with literally twice as much experience as most new law grads, because we had to do 4 full-time 12-week posts to graduate.”

She continued, “I highly, highly recommend pursuing not only summer positions but also internships, externships, clinics, and other practical skill-building opportunities throughout law school to maximize exposure to different practices. For those like me who had a good sense of what we were interested in, use those opportunities as a finely honed tool: explore different work environments within the same field of practice.”

The Learn-As-You-Goers

Lisa Lang, general counsel of Kentucky State University, said, “I never set out with a plan in terms of the practice area. I initially gravitated toward whatever opportunity I found.” She continued, “After several years of practice, I realized where I was strong and where I was weak. That realization helped guide my choices and made me more selective in terms of the opportunities I pursued (and later enjoyed). My choices, at the time, did not appear to make sense.  Looking back now, everything makes complete sense.”

Rachel Coll, lawyer and certified life coach at Rachel Coll Coaching, observed, “I’m a big believer in sampling what you might like, and making decisions as you go. I was always a ‘learn by doing’ kind of lawyer. That’s just me. I loved treating the practice of law like a buffet of practice areas that I just sampled until I was full, and I think this experience helps me look back at my legal career as something that I thoroughly enjoyed.”

The Strategic Type

Anjie Vichayanonda, founder and CEO of Leg Up Legal, explained, “We have to constantly try new things, see if they work, and fail A LOT. If you’re not failing, you’re not growing. Do more. Fail more. Fail hard. Fail fast. And you will learn better. For young lawyers, I would urge you to find a firm with a culture that allows you to explore, challenge yourself, and fail in a safe space. I know it’s extremely difficult to find, but in the long run, it will make you a better lawyer.”

Neil Greenbaum, partner at Greenbaum Law Firm and a former general counsel, said, “As a law student, it would certainly make sense to learn as much as you can in various areas of law. That way, you can actually have some idea of what you might like over what you might not like. However, as a seasoned practitioner, you do want to do a few things as possible exceptionally well.”

The Formulaic Type

“80-20 rule — Pareto rules all the way. Do multiple things 80% [then] focus on a few things with 100%. Use the same rule to pick what 20% of those projects you are working on that will likely drive 80% attention from management or provide you learning experience, and provide extra focus on these projects, and less focus on the others.” Yosr Hussein Hamza, director, legal and ombudsman affairs, Middle East at Gartner, explained.

She continued, “You never know which chance at this age can help you know which area of law you’d like to practice. And this rule helped me so much to date. Perfectionism leads [nowhere] eventually.”

This is a question for which there is no universal answer. As demonstrated by the diversity in answers, it’s a dynamic that each person must be mindful of for themselves, in shaping their own career and balancing learning more with doing good work. But it’s also not a question that is settled once you’re a few years in. Careers are constantly changing, and with more and more opportunities to adapt, lifelong learning is part of what it means to be a modern lawyer. We should all, then, stay intentional about how we can learn new skills while continuing to do our current job well.

And finding that balance is its own skill to develop.

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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. You can follow Olga on Twitter @olgavmack.

On August 23, the Baltimore Ravens terminated the contract of safety Earl Thomas, claiming that Thomas’s personal conduct adversely affected the organization. The early termination of Thomas’s contract creates a situation where the Ravens will seek to void all remaining compensation provisions, including $10 million in guarantees, based on a provision in the agreement that allows the team to back out of the deal if Thomas engaged in conduct detrimental to the club.

The pertinent portion of Thomas’s contract with the Ravens stated as follows:

“In the event Player . . . is suspended for Conduct Detrimental (either by the NFL or Club) . . . then Player shall be in default (“Default”). If Player is in Default, then, the Guarantee shall immediately be deemed null and void from the beginning and in its entirety regardless of whether or not the Guarantee had otherwise been earned according to its terms at the time of Player’s Default.”

Thomas and the National Football League Players’ Association (NFLPA) will certainly challenge the Ravens by filing a grievance. The Ravens have not provided any specificity surrounding the basis for the franchise’s claim that Thomas’s personal conduct adversely affected the organization, but it is assumed that it was mainly the result of fighting with a teammate in practice.

It is expected that the grievance procedure will be initiated in the near future, with a hearing likely to be held in Fall 2020, while an actual ruling may not be issued until 2021. The NFLPA has a limited number of options to expedite hearings and if the NFLPA chooses to invoke the option in this instance, then a hearing could occur as quickly as a week or two after a grievance is filed.

Any grievance process will focus on the specific conduct detrimental definition language within Thomas’s contract as well as how the Ravens organization has responded toward players who have committed similar acts in the past. Thomas happens to have what is considered to be a player-friendly conduct detrimental clause, which allows for guaranteed money to be voided in the instance that he is suspended, whereas less player-friendly provisions sometimes permit teams to get out of such monetary obligations if a player is merely fined. It does not appear that Thomas was ever technically suspended prior to his contract being terminated.

Putting issues surrounding suspension aside, the Ravens could have a tough case on their hands due to the fact that fights during practice are common and rarely acted upon. In fact, the Ravens organization has a history of shrugging off such altercations without imposing any discipline on those involved in the acts.

For instance, in 2016, fights broke out during Ravens team drills, with at least one of those fights resulting in a player suffering a minor injury. Ravens coach John Harbaugh did not mind the fighting and is quoted as stating, “this is what it’s all about … this is football, and we’ve got to build a football team, and we’ve got a bunch of young guys that like to play and want to get after it and have a lot of pride.”

It may be hard for the team to take the position that fighting in practice is acceptable in one circumstance, but a terminable offense when it comes to Thomas, unless there exists additional evidence to distinguish Thomas’s termination from the incidents that took place four years ago and were referred to as simply being “football.”

Even if Thomas ultimately prevails against the Ravens in a dispute, the Ravens still can limit the damage based on offset language contained within Thomas’s now-terminated contract. Such language allows the Ravens organization to deduct any amounts owed to Thomas by the amount of money he receives from the next NFL team that signs him to a contract.

Additionally, it may be more likely than not that the parties come to an early settlement, especially if the NFLPA does not utilize one of its expedited hearings on this forthcoming case. In 2015, the Indianapolis Colts looked to terminate its contract with running back Trent Richardson and void all remaining guarantees. Richardson filed a grievance and the parties ultimately settled for roughly $561,000 of the $3.18 million in guaranteed money that remained on his deal.

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Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.