New Bar Exam Procedures Throw Up Roadblocks For Those Looking To Practice In Multiple States

With in-person exams dangerous exercises that have avoided mass outbreaks mostly through luck and online exams imploding, you might think that every bar exam calamity was already covered. However, you’d be wrong.

In another wrinkle of the state reliance upon the NCBE monopoly for all licensing needs, many applicants are being told that they can’t sit for any other bar exam during 2020 because there’s too much risk that they’ll see NCBE questions repeated.

For example, California writes to its applicants:

Candidates shall affirm that they do not, and will not, plan to sit for any other jurisdiction’s bar exam administration in July, September, or October 2020 during which NCBE tests are used. Jurisdictions should prohibit candidates from participating in the remotely administered test if they will sit for any of these in-person administrations of the bar exam, as such participation may provide an opportunity for nonbona fide candidates to gain access to NCBE’s copyright-protected test material.

Did we say too much risk of repeated questions? Because we meant too much risk that they may see “NCBE’s copyright-protected test material.” Yes, the restriction seems less concerned with exam integrity and more with the risk that… what? A test prep company would send in spies to learn all of NCBE’s secrets before they publicly release the questions? None of this makes a lot of sense and it seems a bold leap to assume anyone looking to be admitted in multiple jurisdictions is a “nonbona fide” examinee.

Regardless of its logic, this standard presents a severe barrier to applicants wishing to practice in neighboring jurisdictions without in-person UBE portability or independently negotiated reciprocity.

Most people don’t need multi-state jurisdiction at the outset of their careers so this isn’t going to have the same detrimental impact as a crashed online platform, but it’s a real problem for folks that do. Assuming California isn’t alone in this position — and I suspect this is going to be the universal position — this could put a crimp in a lot of people’s careers.


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.

Bridgewater Questioning Whether Ex-Co-CEO Ever Actually Read ‘Principles,’ Let Alone Her Employment Agreement

Morning Docket: 08.18.20

Jussie Smollett (Photo by Chicago Police Department via Getty Images)

* A special prosecutor appointed in the Jussie Smollett case found that the prosecutor’s office abused its discretion in overseeing the matter. [Wall Street Journal]
* A Texas lawyer is being sued for allegedly leading clients to a failed real estate investment with which the attorney had an undisclosed interest. [Texas Lawyer]

* The Boston Bar Association is urging Attorney General Barr not to pursue the death penalty for the Boston Marathon bomber. [Boston Globe]

* Apparently it’s not libelous to tell a lawyer that he “needs to go back to law school.” Maybe this is because lawyers learn very little about how to be practicing attorneys in law school… [Volokh Conspiracy]


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.

In-Person Law School Is Going Exactly As Expected — See Also

That’s A Lot Of White Attorneys

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

According to data collected by Law.com, what percentage of Multi-District Litigation plaintiffs’ leadership teams from 2016 to 2019 identified as nonwhite?

Hint: About 4 percent of attorneys in MDL leadership positions had undetermined ethnicity, but even with that unknown, the numbers reveal a shocking number of white attorneys in these roles.

See the answer on the next page.

Big profits put insurers on awkward footing  – MedCity News

During the initial months of the Covid-19 pandemic, insurers saw profits rise, even double, as patients cancelled surgeries and postponed care. This has left insurers to explain their various pandemic response efforts in an election year where a public option could be on the table.

UnitedHealthcare saw its net profits jump from $3.4 billion in 2019 to $6.7 billion for the second quarter of 2020, with Anthem and Humana also seeing their bottom lines double. Aetna, which was acquired by CVS Health in 2018, also contributed to its parent company’s rising profits, with the segment’s operating income increasing from $1.06 billion last year to $3.07 billion in 2020.

As they set premiums for next year, insurers will have to walk a tight line between not setting rates too high, triggering premium rebates, while not underestimating future costs related to care that might have been deferred today.

“They’re going to be walking this fine line where they don’t want to make too much money or price too high. On the other hand, they’re still going to want to be competitive,” Fitch Ratings Senior Director Brad Ellis said in a recent panel discussion. 

The Affordable Care Act requires health insurers to spend at least 80% of their premium income of healthcare claims and quality improvement, limiting the amount that can go to administration and profit. When healthcare spending falls below that threshold, they’re expected to pay members back in premium rebates, calculated over a three-year period.

Based on what they spent in 2017, 2018 and 2019, insurers are expected to repay $2.66 billion to 7.9 million members in 2020, according to an analysis by the Kaiser Family Foundation (KFF).

“Insurers have already paid back record rebates in the past two years. It’s reasonable to expect that would continue,” said Daniel McDermott, a research associate with KFF.

If healthcare spending so far this year is any indication, more rebates are likely in the future. Insurers saw utilization rates drop between 30% and 40%, as elective procedures were cancelled and patients opted to stay at home. They also saw medical loss ratios — the amount that they spend on claims — fall to new lows, with UnitedHealthcare reporting a ratio of 70.2% and Aetna seeing its ratio fall to to 70.3% in the second quarter.

Some patients might also see funds this year in the form of premium credits. Earlier this month, the Centers for Medicare and Medicaid Services said it would allow insurers in the individual and small group markets to temporarily offer premium credits to help people who might struggle to pay premiums due to the current health crisis.

Setting premiums for next year

Given the sudden drop-off in care, one might expect premiums to decrease next year. But that’s not necessarily the case.

Based on individual market plan data from 10 states, so far, a modest increase is expected for next year, McDermott said. The median increase was 2.4%, but rates ranged from an 11% decrease by the Kaiser Foundation Health Plan in Maryland to a 31.8% increase by New Mexico Health Connections, which recently announced that it would cease operations at the end of 2020.

“Most insurers have held off from making assumptions about Covid-19 in their preliminary filings,” he said. “A lot of insurers are still in wait-and-see mode.”

Payers are still trying to factor in the costs of a vaccine, a potential second wave of Covid-19 in the fall, lasting effects of the disease itself, and costs related to deferred care.

Since the start of the summer, patients have started coming back quickly, though insurers still haven’t seen the “pent up demand” for care that they had expected.

“Although it’s started to tick up a bit, health spending is still 10% lower than it was last year,” McDermott said.

It’s difficult to forecast how that will change in the next year.

Industry lobbying group America’s Health Insurance Plans estimates treatment costs for Covid-19 could range from $30 billion to $547 billion over the next two years.

“The second half of the year could see a lot more care, and higher costs, than the first half of 2020,” AHIP wrote in a blog post. “However, if these costs never materialize and remain below certain levels, American consumers, businesses, and taxpayers are protected by provisions in federal and state laws that require health insurance providers to deliver premium rebates and put money back into their pockets.”

Membership changes

For insurers, the biggest threat is long-term changes to their membership if more patients lose their job-based insurance. So far, that effect has been less than expected at the beginning of the pandemic.

UnitedHealthcare, for example, saw its commercial enrollment decrease by 2%.

“The impact on commercial enrollment hasn’t been as great as we would have otherwise thought based on the unemployment data, just because of the stimulus as well as the furloughs,” CEO David Wichmann said in an earnings call.

Anthem also reported a less-than-expected decrease in commercial enrollment of 290,000 members, while its Medicaid enrollment increased by 15%. That said, its executives said they expect a decrease in commercial membership when federal assistance ends.

“I want to be clear, we do expect further declines, assuming the economy continues to operate at less than full capacity,” CEO Gail Boudreaux told investors.

Centene, which is a big provider of Medicaid and ACA marketplace plans, actually had raised its revenue guidance for 2020 by $6 billion, based on unemployment trends. But it recently adjusted its expectations down by $500 million, noting that membership at lower rates than it had initially expected.

That leaves one big variable: the upcoming election. That could spell out the future for the Affordable Care Act, the recent outcropping of Medicare Advantage plans, or potentially even a public option.

“The election is a huge issue for health insurers. Who gets into the White House is very important, whether it be from the standpoint of Medicare for All, or whether it be the extent to which the Medicare Advantage program itself is supported as it has been under the Trump administration,” Ellis said. “Assuming there’s no change in terms of a public option or the overall healthcare system, we expect insurers to return to baseline run rate margins.”

Photo credit: TAW4, Getty Images

Biglaw Firm Announces Election Day Will Be A Paid Holiday

(Image via Getty)

As the days and weeks since the tragic deaths of George Floyd and Breonna Taylor march forward, it’s natural to start to wonder what, if anything, has changed. Biglaw made a big promises in the wake of protests supporting Black Lives Matter, but will that actually make a difference?

Of course, what the most powerful law firms should do to support racial justice is a question with a lot of different answers. Giving money is a big, and somewhat obvious, answer, as is doing some really vital pro bono work. But more is needed. Like rethinking what programs firms support, and even rethinking the traditional holiday calendar. Lots of firms got in on declaring Juneteenth a holiday, and now there’s another day earmarked for equal justice.

Fenwick recently announced a Voting Rights Initiative which includes declaring Election Day a paid public service holiday, designed to allow employees the time to vote and volunteer. In a statement about the new program, firm chair Richard Dickson said the move was linked to the firm’s commitment to equal justice:

“Our voting initiative ties directly to Fenwick’s Action for Change and our promise to work toward equal justice through civic engagement,” said Fenwick Chair Richard Dickson. “Voting is the most powerful lever in a democracy, and the most effective way to bring about change at the local, county, state and national levels. I hope that other law firms and more companies will join in making similar investments to promote the civic engagement needed for a properly functioning democracy.”

As with most Biglaw trends, we’ll be tracking exactly which firms are giving time off for employees to do their civic duty. If your firm is giving time off for Election Day or otherwise supporting voting rights, 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).


headshotKathryn 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).

Judges Say Prosecutors Can Spoof Spoofing Probes

Law School Grads Are PISSED The Bar Exam Got Canceled At The Last Second

(Image via Getty)

My reaction, like all applicants, is anger and disbelief. Anger that a better and more viable alternate solution is readily available, and in disbelief that a government body can be so utterly and inexcusably incompetent as the [Florida Board of Bar Examiners] is. Applicants are exhausted, and are taking several days’ well-deserved rest.

The Florida Board of Bar Examiners knew last week that there was no way the software would work. The fact that they never even went to a stress test means they knew well before last night that this wouldn’t work, and they still had no contingency plan. They had no alternative option besides delay, kick the can down the road, and hope they can figure it out later.

Who knows if it will be ready by [October]? Who knows what the realities for the applicants will be by then? People are starting work next week. They can’t wait until some undetermined time in October to get a paycheck and put food on the table. It’s utterly unethical, what the Board of Bar Examiners have done.

— Brian Heckmann, a recent graduate of Florida International University Law, commenting on the last-minute cancellation of the Florida bar exam with just two days’ notice. Considering the pandemic, Heckmann is a proponent of emergency diploma privilege for those who would like to practice law in Florida.


Staci ZaretskyStaci 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.

Legal Technology Jumps Into Police Reform

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The tragedy of the killings of Breonna Taylor and George Floyd is that they weren’t particularly unique. Innocent, unarmed Black Americans are regularly killed by police across the United States and the justice system rarely ends up doing anything about it. As Judge Carlton Reeves poignantly noted, the doctrine of qualified immunity is responsible for a lot of the system’s lack of accountability, but it gets a tremendous boost from police unions whose contracts regularly set up roadblocks to gathering information about police abuse that renders future efforts to pierce immunity next to impossible.

Police reform organization Campaign Zero is working to spread awareness of common collective bargaining provisions that undermine public safety and accountability.

But what can legal tech do about a problem like this? It turns out it can do a lot.

Kira Systems, the machine learning-based contract analysis tool, provides exactly the sort of product that can sift through hundreds of lengthy police union agreements to identify key language and that’s why the company announced that it has partnered with Campaign Zero on the “Nix the 6” initiative focusing on six particularly troubling provisions that routinely appear in union deals. Earlier Campaign Zero efforts gleaned valuable insights from a number of contracts covering America’s largest cities, but as part of this new project, Campaign Zero has collected over 600 police union contracts and Law Enforcement Officers’ Bill of Rights across 20 states, which Kira will be hosting in a smart database to provide reporters with access to them in order to inform their reporting. API integrations will be built into the website for the purpose of sharing information with other interested parties. It’s the sort of supercharged contract analysis that Kira was built for.

Kira Systems founder and CEO Noah Waisberg explained, “We believe people make better decisions when they understand what’s in their contracts. That applies in the policy realm as well as the business world. This is an area where we, as a society, really need to make better decisions.”

While organized labor has taken a vicious beating at the hands of the Supreme Court, police unions emerged relatively unscathed from the turmoil. And even though it’s nice that the right of law enforcement workers to negotiate fair wages remains largely intact, fair pay ends up a small part of police union deals bogged down by procedural perks that tend to backdoor substantive criminal justice policy into the system under the guise of collective bargaining. One might not think of erasing misconduct records as a matter for negotiation but it’s a ubiquitous provision across the country.

Campaign Zero co-founder DeRay McKesson explains:

There is a hidden system of protections that almost guarantee that policing will not change and that officers will not be held accountable for their behavior. Nix the 6’ is about breaking down the legal structures that enable police violence. Thanks to Kira’s machine-learning software, we can systematically evaluate and dismantle these contracts that stifle reform, thus making it easier to pursue fundamental change.

The six planks identified by Nix the 6 are:

  • Short expiration dates on complaints
  • Limited oversight and discipline of officers
  • Erased misconduct records
  • Police misconduct cases and consequences paid for with public funds
  • Preferential access to evidence for implicated officers
  • Unfair interrogation procedures

Kira can run through the documents and extract the varied language that fits these concepts. For example drawing out and color-coding all language related to delaying interrogations for easy review.

That can then get fed into an interface like this one that displays when the contract is up, who to contact about it, and which of the six provisions are featured. All of which are easily clickable to provide the exact language identified for these provisions.

Sometimes our corner of the tech sector can feel a little niche, oriented toward parochial needs like billing and relationship management that only really matter to the professional model we’ve built for ourselves. But the law still forms the fabric of American life and even if our tools are just about helping lawyers do their jobs day to day, legal tech has a role to play in advancing justice. What Kira’s done is take a massive, multijurisdictional, multiparty contract issue and leverage their AI contract tools to untangle it for scrutiny. Just another reminder that legal technology is doing a public service at heart.


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.