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There’s a reason that the word “sophistry” is generally preceded by the word “empty” in common parlance. The ancient school of thought is remembered these days for elevating style — through semantic games, logical fallacies, or outright trickery — over substance.

And it’s a worldview put on full display at the Supreme Court this morning in Brnovich v. DNC, as Justice Alito took a sledgehammer to what remains of the Voting Rights Act in the aftermath of Shelby County.

Despite some wishful thinking that dragging out this opinion hinted at Alito’s opinion falling apart at the last minute, the six Republican-appointed justices duly lined up to take a swing at the VRA. If there was any behind-the-scenes quibbles at the last minute it would have been to fend off possible concurrences that might weaken Alito’s assault on the law. As it was, the conservatives didn’t waiver from the majority, leaving only a short statement from Justices Gorsuch and Thomas questioning whether or not there’s a private right of action to enforce voting rights at all. Alito didn’t say the VRA is non-existent, but functionally it’s hard to tell what’s left.

The Arizona laws at issue involved limiting voters to casting their ballots at their assigned polling place — a restriction designed to burden working voters in low wage jobs who may not have the luxury of being at home during election hours. The second was a rule allowing individuals other than the voter’s family to collect early ballots. While chain of custody issues gave rise to one of the exceptionally rare real voter frauds out there, the logic of allowing someone to collect ballots is to make sure more people are able to exercise their right to vote.

One can quibble over whether or not these are sound regulations. They seem far more likely to suppress voting than prevent actual fraud and seem purposely designed to disproportionately suppress turnout by voters of color specifically. This is the Supreme Court, so the facts of the specific case don’t matter as much as what the justices decided to do after taking the ball and running with it. And Alito was ready to dash to the GOP endzone.

Section 2(b) states that §2 is violated only where “the political processes leading to nomination or election” are not “equally open to participation” by members of the relevant protected group “in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”

Indeed. It seems as though laws designed to curb minority participation would fall into that language. But don’t worry, here comes TWO PARAGRAPHS of random — literally RANDOM HOUSE — definitions to rewrite that, taking “equally” and “open” and “in that” and “opportunity” before beginning the next paragraph with “Putting these terms together,” to create a Frankendefinition dripping with all the tactics of Orewellian Newspeak. Alito rewrites the section to create new rules that transform the statute from a shield against voting rights abuses to a machete for state legislatures to wield in pruning the cornerstone of democracy.

1. …. The concepts of “open[ness]” and “opportunity” connote the absence of obstacles and burdens that block or seriously hinder voting, and therefore the size of the burden imposed by a voting rule is important….

2. …. the degree to which a voting rule departs from what was standard practice when §2 was amended in 1982 is a relevant consideration.

3. …. the mere fact there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote.

4. …. where a State provides multiple ways to vote, any burden imposed on voters who choose one of the available options cannot be evaluated without also taking into account the other available means.

5. …. every voting rule imposes a burden of some sort, and therefore, in determining “based on the totality of circumstances” whether a rule goes too far, it is important to consider the reason for the rule.

It may not look like much, but with some word game fun, a law created to stand vigilantly skeptical of laws imposing barriers on specific demographics of voters is transformed into “restrictions are presumptively legal if the state claims that it burdens minority voters ‘in the interest of preventing fraud.’” Orwell has already shown up in this article and while, as a writer, I hate going to that well all the time, this SCOTUS-approved listicle does feel like rewriting half a century of civil rights law to say “but some are more equal than others.”

To the extent that minority and non-minority groups differ with respect to employment, wealth, and education, even neutral regulations, no matter how crafted, may well result in some predictable disparities in rates of voting and noncompliance with voting rules….

There’s a lot of attention around “critical race theory” these days and it’s mostly a catch-all term for “not saying white people are awesome” but this is an actual example of where critical race theory would fit in. Where “neutral” is set to exclude “employment, wealth, and education” it’s being set to guarantee the scales are tipped and to suggest otherwise is just being deliberately obtuse about the state of… everything in this country in 2021. But deliberately obtuse is a core facet of the voting rights assault.

And so we come to the money quote:

Section 2 does not require a State to show that its chosen policy is absolutely necessary or that a less restrictive means would not adequately serve the State’s objectives.

Claim fraud. Don’t bother proving it. Don’t worry if the remedy is intentionally more restrictive than required. Make sure there’s some alternative voting method… like opening one booth from 1 p.m. to 1:15 p.m. in downtown Phoenix, and you’re good to go.

Justice Kagan, in dissent, delivers an incisive recap of the majority’s contempt for Congress:

The Court always says that it must interpret a statute according to its text—that it has no warrant to override congressional choices. But the majority today flouts those choices with abandon. The language of Section 2 is as broad as broad can be…. No matter what Congress wanted, the majority has other ideas.

This Court has no right to remake Section 2. Maybe some think that vote suppression is a relic of history—and so the need for a potent Section 2 has come and gone…. But Congress gets to make that call. Because it has not done so, this Court’s duty is to apply the law as it is written.

The threat to democracy posed by the Supreme Court at this juncture is palpable. Unelected, life-tenured jurists — the majority appointed by presidents who entered office having lost the popular vote — have rewritten a duly enacted law for the express purpose of limiting the franchise. Congress is a dysfunctional sideshow and the Supreme Court is apparently eager to rewrite legislation to enshrine their right-wing impulses knowing that Congress is incapable of passing legislation to counter the Court’s word games.

There’s a romanticism for the Supreme Court among lawyers, but this opinion indicates that it is an institution at best dangerously ill-fitted for our times and at worst fundamentally broken.

The Sophists have won. It’s all just mummery at this point.

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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.

Although LGBTQ+ rights have come a long way in the U.S., it was not long ago that being gay was criminalized in many states, and being a LGBTQ+ attorney was akin to career suicide. Even in a post-Bowers and post-Obergefell world, openly LGBTQ+ attorneys account for less than 3% of the profession. And while marriage equality is the law of the land, lawmakers in 2021 have already passed over 100 pieces of legislation preventing trans people from accessing healthcare, bathrooms, sports and more. There is a lot of work to be done, though we have made some progress along the way

This progress would not have been possible without the tireless advocacy and efforts of the LGBTQ legal pioneers who advocated for fairness and equality in the U.S. and within the legal profession. Read about just a few of these trailblazing attorneys below:

Barbara Charline Jordan

Barbara Charline Jordan was an outsize figure in politics and the fight for civil rights. Her passion for politics ran in her family – her maternal grandfather was one of the last Black state representatives in Texas prior to mass disenfranchisement under Jim Crow, and her mother was known for her public speaking skills. In law school, she was a champion debater, winning against teams from Ivy League schools. She turned towards a political career after law school while working on the JFK presidential campaign, where she organized a successful get out the vote effort in Houston’s Black communities. In 1966, Barbara became the first Black state senator in Texas since Reconstruction. In 1972, she became the first woman to represent Texas in the House of Representatives, and the first Black congresswoman from the South. She was a fearless advocate for civil rights, and was known for impassioned speeches that changed hearts and minds. Although she was not out publicly during her political career, she did have a long time domestic partner, Nancy Earl, and her work paved the way for the LGBTQ+ politicians who came after. She passed away in 1996.

Dennis deLeon

From his early career as a trial lawyer with the DOJ and his advocacy for migrant workers in California, to his tenure as New York City Commissioner of Human Rights, and the decades he spent as Executive Director of the Latino AIDS Commission, Dennis deLeon was a fierce advocate for justice who loved working in public service. In 1993, he made the brave decision to come out publicly as HIV positive, contributing to greater visibility for people with AIDS. In his time with the NYC Human Rights Commission, he helped investigate and end discriminatory housing, employment, and healthcare policies. In his role with the Latino AIDS Commission, he helped create a library of Spanish language resources for people with AIDS, and was known for his successful coalition building with other communities of color fighting the AIDS crisis. He passed away in 2009.

Carrington Boggan

Carrington Boggan was one of the founders, along with Bill Thom, of the critically important LGBTQ advocacy organization Lambda Legal – which was originally denied its application for incorporation because it was “neither benevolent nor charitable”. As general counsel of the newly formed Lambda Legal and the first openly gay attorney to argue before the New York Court of Appeals, he filed an amicus curiae in Matter of Kimball, a case which allowed an attorney who had previously been disbarred for being gay to be admitted to practice in New York. He also won reinstatement for two Air Force and Navy veterans who had been discharged for being gay. Additionally, he successfully litigated a federal suit granting gay students the right to assemble on a state university campus, and he outlined some of his groundbreaking strategies in the law review article Securing Gay Rights through Constitutional Litigation. He passed away in 1992.

Judge Phyllis Frye

In her early career, before she became the first openly transgender judge in the U.S., Judge Phyllis Frye struggled to find employment. She became an attorney in 1981 and didn’t start practicing full time until 1986, when she took a case for a closeted, gay man in the military who received a DWI while walking out of a gay bar and wanted to keep it out of the newspaper. After that, she ran her own private practice, representing many members of the LGBTQ+ community. In the 1990s, she started the International Conference on Transgender Law and Employment Policy, working with other trans lawyers and activists to write policies and strategize around their advocacy. Later in her career, she handled many name changes and discrimination claims for her trans clients. As a Judge in the municipal courts of Houston, Texas, she primarily handles traffic offenses, but the legacy of her fearless advocacy is felt all over the country.

Urvashi Vaid

Named by Out Magazine in 2009 as one of the 50 most influential LGBT people in the U.S., Urvashi Vaid has done amazing work advancing LGBTQ+ issues in politics for over three decades. While still in law school, she started the Boston Lesbian/Gay Political Alliance, an organization that interviews and vets political candidates and advocates for LGBTQ+ issues. Her career has taken her from the ACLU’s National Prison Project, to various positions with the National LGBTQ Task Force, to the Engaging Tradition Project at Columbia Law School’s Center for Gender and Sexuality Law, and beyond. In 2012 she founded LPAC, the first lesbian Super PAC. She has written several books, including Virtual Equality: The Mainstreaming of Gay and Lesbian Liberation and Irresistible Revolution: Confronting Race, Class and the Assumptions of LGBT Politics.

Of course, these were just a few of the many brave attorneys who fought for the rights we have gained, and paved the way for the work still to be done. To learn about the amazing work young LGBTQ+ attorneys are doing to change the world now, check out the LGBT Bar’s annual 40 Best LGBTQ+ Lawyers Under 40 list.

Related Content:

1. Estate Planning for Same-Sex Couples and Non-Traditional Families under the Biden Administration
2. How to Address Anti-LGBT Bias in the Courtroom
3. Drafting and Implementing LGBTQ+ Inclusive Law Firm Policies and Procedures

For more than a year, lawyers and legal staff have largely worked from home thanks to the pandemic. But now, with the coronavirus crisis in the rearview mirror thanks to widespread vaccination protocols, law firms of all kinds have announced their reopening plans — some with hopes to return to the pre-COVID status quo of all office, all the time, and others more than willing to offer the remote flexibility that employees have become accustomed to during these unprecedented times.

Not everyone is terribly eager to return to the office, and we have it on pretty good authority that some attorneys are dreading it. But that got us wondering: how much money would it take for lawyers to put aside their dreams of remote flexibility? In the wake of the latest Biglaw pay hike, let us be the first to tell you the answer is not a 7.9% salary increase (i.e., the new $205K salary scale).

Are lawyers ready to return to their offices? What would be more preferable, more money or permanent work-from-home options?

We polled more than 600 attorneys and staff members across hundreds of Biglaw and boutique law firms from almost every state in America to find out what lies ahead for the legal workforce in the wake of the pandemic.

As it turns out, money — lots of it — talks, and it would make lawyers reluctantly leave their remote work capabilities behind. According to our survey, it would take a 30% increase to get over half of our respondents to choose to forgo the ability to work remotely. A combined 357 of the 600-plus who took our poll said a 10%, 20%, or 30% salary increase would be their choice over permanent remote flexibility.

Which is more appealing to you?

Which is more appealing to you?

Asked only of those who reported they would prefer permanent work from home flexibility over a 10% pay raise.

Which is more appealing to you?

Asked only of those who reported they would prefer permanent work from home flexibility over a 20% pay raise.

The harsh reality is that a 30% raise won’t be coming, and like it or not, we’ll all have to return to our offices at some point in the future. So, with that having been said, we got down to misery business with our next question (respondents were allowed to select all choices that applied).

What are you dreading most about a return to in-office work?

Commuting (76.80%), work/life balance (57.19%), and professional dress code (35.25%) were identified as the top three things respondents were dreading most about the return to in-office work.

On the other side of the coin, even if lawyers are being forced to return to the office, there are some bright spots for those who have more or less been confined to their homes for more than 15 months. Respondents were allowed to select all choices that applied for our next question.

What are you looking forward to most about a return to in-office work?

Seeing colleagues in-person (59.85%), office resources (43.63%), and being out of the house (39.96%) were identified as the top three things respondents were looking forward to the most about the return to in-office work.

When asked to share their general thoughts on office reentry, our survey respondents really spoke their minds and some common themes emerged. Here are some select responses that we thought would really resonate with others.

Permanent flexible remote work scheduling is desired by most respondents (but that shouldn’t mean that attorneys are available to work at all hours).

• “Why any firm wouldn’t offer flexible WFH policies after the last 15 months is totally beyond me and a sign of the refusal of many law firms to join the 21st Century.”
• “Although there’s a gap in workplace camaraderie, I think the quality of people’s work can now shine through in the remote environment, rather than allowing commonality or favoritism to dictate work assignment.”
• “During the pandemic, what little boundaries we had in Biglaw were dissolved. Now we get partners assigning work at 10 pm due that night and calls on weekends where we get chided for not responding within an hour on a weekend. If this 24/7 nature of the firm continues and we have to be in the office, I believe many mid-levels who are burnt out will leave. We need mandated vacation annually where we’re required to turn devices off.  WIthout that, post pandemic work is going to be hell.”

There is a sense that only lawyers think a return to the office is necessary.

• “The fact that some dinosaur partners miss being at their desks and can’t handle the fact that not everybody wants that, or works like that, is shortsighted. Every associate who got a “return to status quo” is looking to move right now, and law students aren’t looking to lose their flexibility – this is what they’ve literally grown up in the law doing. What a terrible loss of resources and revenue that will be for these rigid firms.”
• “The individuals at my Am Law 100 firm pushing for full time in person office reopening are all older partners who have been skirting health care guidance the entire pandemic to go into the office because that is “just the way they work.” Some partners never adjusted to the “new normal” of working from home, so instead of letting us enjoy the flexibility it provides us and the cost-savings it would provide the firm, they want us to come back in person full time because they had to when they were associates. Not compelling.”
• “I regard returning to the office as retrograde, something we’ll look back at in 20 years as a quaint relic. Most of the people I know champing at the bit to go back say it’s important for “office culture” and other fundamentally immeasurable and unprovable qualities. It seems like it mostly a way for sad sack boomers with no lives outside of work to socialize despite the manifest idiocy of commuting just to do the exact same thing you were going to do at home. I will probably lateral to a firm with a better policy soon.”

Many believe that their productivity increased while working from home.

• “Last year was my most productive year – I was one of the top billing associates in the firm, and I got favorable news about my prospects as partner, which is my dream. But I would rather quit my job than be back in the office full time. This has been an insanely stressful time for everyone, but we’ve also learned that you absolutely can be productive outside of the office.”
• “The last year proved that everyone at my law firm can do their jobs wonderfully without being in the office. The pandemic has changed our firm forever.”

Staff are feeling neglected and underappreciated.

• “Staff has been completely disregarded. We’re people too, and we had to pivot to remote work just like attorneys did. We certainly didn’t see any COVID bonuses for working from 7 a.m. – 9 p.m.”
• “Why does a solution have to be one-size fits all or flexibility just for attorneys? Professional staff share some of the same concerns as the attorneys.”

COVID safety is still an issue, especially thanks to the new Delta variant.

• “Everyone will not be vaccinated so I am not looking forward to going back.”
• “I will not return to the office until my children are vaccinated.

Are you ready to return to the office? We know the attorneys who responded “noooooooooooooooooooooo” and “WHYYYYYYYYYYYYYYYYYYY – seriously there isn’t a good reason” aren’t looking forward to it. As with all things having to do with COVID-19, these plans are likely subject to some amount of change, but be sure to prepare yourselves for office life once again — because it’s happening, and soon.

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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.

Working over holiday weekends is not extraordinary for Biglaw associates. Frankly, it’s not out of the ordinary for small law associates. For over a decade I was home on Memorial Day exactly once. Working holidays is unfortunately part of the job.

But even though it’s sometimes necessary, a lot of times it’s just… not.

We’ve litigated the question of whether or not lawyers are technophobes to death. Whether it’s a fear of technology or the inefficiencies of any large organization, there are associates out there struggling because they’re doing tasks by hand that the legal technology community automated years ago.

Are you a transactional associate doing due diligence this weekend? Looking at key provisions from a hefty sample significant deals? Did you know Kira Systems has a solution that could let you review every deal using artificial intelligence. In a fast, cost effective manner, you could have problematic provisions flagged for evaluation instead of trying to dig them out of a sample. Frankly, this isn’t only a time-saving measure, it might be a professional responsibility matter — if tech exists that could find problems and the firm doesn’t identify them as part of the sample, is that really due diligence?

And contract review is not just about due diligence. There are multiple aspects of the contract review from BlackBoiler to Luminance process that all have their own AI-based solutions designed to expedite the drudgery.

On the litigation side there are discovery platforms that use AI to charge through mounds of documents more efficiently. There are products like Casetext for research and writing. LexisNexis and Westlaw offer various analytics tools to streamline the annoying “look up every thing our judge has ever said about this issue” task.

Everywhere you turn there’s a product designed to help associates do these tasks faster. If you’re looking to find out what’s out there, we have a guide right here. Has your firm taken the steps to help you finish your job in time for Friday happy hour? If they haven’t, get active within the firm — maybe there’s a tech committee, or allies to find on the IT staff or among the law librarians — and make sure the firm has access to the tech it needs. Or more importantly that it’s adopting the tech it’s already bought.

As a second-year associate, I got on a Biglaw firm tech committee. You’re not too young and inexperienced to push for shaping the tech landscape of the firm. You’re the ones feeling the brunt of the firm’s mistakes. Get out there and advocate for yourselves and your colleagues.

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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.

A lawyer is finally learning the lesson that posting harmful stuff on social media can impact your legal career.

Looks like there will actually be some consequences for South Carolina personal injury attorney David Traywick. Last June, we told you about Traywick’s frankly disturbing use of social media following the murder of George Floyd. He somehow decided it was acceptable to refer to Floyd as a shitstain in the following message that quickly made the rounds:

Back then, we didn’t hold out much hope that there’d be disciplinary action against Traywick, as a tipster pointed out South Carolina has not adopted the American Bar Association’s rule identifying harassment or discrimination as professional misconduct:

Unfortunately, SC has not adopted the ABA’s rule 8.4(g) so there’s very little the Bar can do to censure him, at present, though I expect they’ll be taking this rule up again soon. The alternative is getting his colleagues and potential clients to vote with their wallets…

However, after 46 complaints about Traywick’ Facebook page, which identified him as a lawyer and referenced his law firm, the South Carolina Supreme Court has suspended him for six months. He’ll also have to complete at least one hour of diversity education, undergo an anger management assessment, submit to an evaluation through the South Carolina Bar program Lawyers Helping Lawyers, and comply for one year with any treatment recommended by the assessments.

In the opinion, the South Carolina Supreme Court focused on the Floyd post and another about women who have tattoos, as described by the ABA Journal:

Traywick posted about tattoos April 5, 2020. First, he posted his theory about tattoos and challenged his readers to “Prove me wrong. Pro tip: you can’t.”

A reader suggested that Traywick instead prove that he was right. Traywick responded: “The general statement has exceptions, such as for bikers, sailors, convicts or infantry. But these college educated, liberal suburbanites. No, the rule was written for these boring motherf- – -ers. And they are everywhere. F- – em. Especially these females, Jesus Christ!”

The opinion called Traywick’s posts “troubling,” which, yes, very much so. They went on to note:

“These comments are not expressive; they are expressly incendiary. Both are statements by a lawyer on his social media account identifying him as such and listing the name of his law firm. The statements were intended to incite, and had the effect of inciting, gender and race-based conflict,” the state supreme court said.

“We are particularly concerned with the statement regarding Mr. Floyd. We find this statement was intended to incite intensified racial conflict not only in [Traywick’s] Facebook community but also in the broader community of Charleston and beyond. We hold this statement in particular tended to bring the legal profession into disrepute, violated the letter and spirit of the Lawyer’s Oath, and constitutes grounds for discipline.”

Traywick admitted to the misconduct and consented to a suspension of no longer than six months.

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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. 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).

Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome Elizabeth M. Edwards to our pages. Click here if you’d like to donate to MothersEsquire.

Do you ever feel like being a lawyer and an involved mother is nearly impossible? Do you ever feel that when you put more energy into being a lawyer, your family life suffers? We’ve all heard of mom guilt, and it is definitely real. I know I used to have a lot of mom guilt before transitioning to working from home.

Before working from home, my schedule reminded me of the song “Manic Monday” by the Bangles: “Six o’clock already, I was just in the middle of a dream.” Every morning, I would spend a few moments encouraging myself to get out of bed and start getting ready for work. I took a shower, put on my makeup, got dressed, and made a smoothie for the road. I would greet a family member at the door who graciously came to my home every morning to take care of my toddler and bring him to school. If I was lucky, my son was awake before I left for work. I gave him a big hug and kiss and told him that I hoped he had a great day. I left my house to a stressful hour-long commute battling South Florida’s expressways during rush hour. I worked a full day at the office, got home around six, made dinner, gave my son a bath, and put him to sleep. Some nights, when mediations ran past seven o’clock, I wouldn’t make it home in time to say goodnight to my son. I then collapsed on the couch around 9 p.m. knowing that the rest of my week would follow the same routine. Does this routine sound familiar to you? This used to be what my work weeks looked like.

When the coronavirus hit the United States in March 2020, all nonessential employees were told to start working from home. As lawyers, we had no idea how long working from home would last. Two weeks? A month? Certainly, it would not last through the summer. Over a year later, many lawyers are still working from home, and attorneys and firms have learned to adjust, thrive, and even enjoy their new routines.

My routine these days looks much different. Now, I naturally wake up around seven, when the sun starts seeping in through my window. While still in bed, I turn on my daily meditation and meditate for 10 minutes. I get ready (which these days consists of putting on yoga pants and a T-shirt), take the dog for a walk, and respond to a few work emails that came in overnight. Then, my favorite part of the day starts. I go into my son’s room to greet him good morning, eat breakfast with him, and drive him to school. This isn’t my favorite part of the day because its easy. Anyone with a toddler knows that trying to get your child to eat, brush his teeth, get dressed, and timely get out of the door in the morning is like herding cats. It’s my favorite part of the day because it’s something I was never able to do when I was commuting to work every day, and it’s something I will not let myself take for granted. After I drop my son off at school, I’m home around 9 a.m., make myself a cup of coffee, go into my home office and start working for the day. My son comes home from school at 3 p.m., and if I’m not in mediation or a meeting, he runs into my home office and gives me the biggest hug. I spend a few moments with him and ask him about his day. Whenever work is done for the day, I no longer have an hour-long commute. Now, I just go into the other room and spend quality time with my family. When a mediation runs late, I am able to squeeze in hugs during my breaks and go into my son’s room and say goodnight before he goes to bed. Working from home has not only personally benefited my family, but it has also benefited my clients and my firm. My productivity levels have increased, and I work earlier in the mornings and later in the evenings because I no longer have a commute.

Before the coronavirus forced me to start working from home, I never truly felt like a mom. Due to the limited amount of time I was able to spend with my son, I felt like family members and teachers were raising him. Time is so precious, and our children grow up so quickly. I am so thankful to have been able to spend so much quality time with my son over the past year. Being able to work from home and take a more active role in my son’s life has truly made me feel like mom for the first time. Being a lawyer and a mom certainly isn’t easy, but working from home, I now feel like I can truly be a lawyer, mediator, and mom.

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Elizabeth M. Edwards, Esq. is a family law attorney and a Florida Supreme Court Certified Civil, County, and Family Mediator who practices in Broward and Palm Beach County, Florida. Elizabeth focuses her practice on family law and alternative dispute resolution of civil and family law matters, and prides herself in her ability to settle complex cases without the need for prolonged litigation. Elizabeth has been listed as a Rising Star in family law by Florida Super Lawyers, and is rated AV Preeminent by Martindale Hubbell for the highest level of professional excellence. Elizabeth and her husband are parents to an active young boy and their family dog. To learn more about Elizabeth’s practice, please visit ElizabethEdwardsEsq.com and BFinkelpa.com.

The federal District Court for the District Of New Jersey adopted a new local rule on June 21 that requires the parties to a lawsuit to disclose all third-party litigation funding arrangements within 30 days of an initial pleading or transfer, or whenever the information becomes known.

New Local Civil Rule 7.1.1 became effective immediately, according to the order signed by Chief Judge Freda L. Wolfson. The disclosure applies to any person or entity that is not a party to the case but provides money for attorneys’ fees and expenses in exchange for a “contingent financial interest” based on the outcome.

Parties to cases pending when the district court’s order was signed have 45 days to provide their disclosure, which must identify any third-party funders with names, addresses — and if legal entities — the place of formation. 

The new local rule also requires a brief description of the financial interest the funders stand to gain if things go their way, as well as disclosure of whether the funders’ approval is required for litigation decisions or settlement. Parties may seek additional discovery of the terms of such an agreement “upon a showing of good cause that the non-party has authority to make material litigation decisions or settlement decisions, the interests of parties or the class (if applicable) are not being promoted or protected, or conflicts of interest exist,” the order said.

Proponents of the new local rule believe it is necessary because third-party funding agreements can pose ethical problems. In a letter in support of the rule, the U.S. Chamber Institute for Legal Reform and New Jersey Civil Justice Institute noted several reasons disclosure is a fine idea, including the avoidance of conflicts of interest and inappropriate fee-sharing between lawyers and non-lawyers. The letter also cited the need for parties to know the identity of their litigation adversaries, to know all information relevant to settlement efforts, and to know who may be exercising control or influence over litigation decisions. 

To the extent parties have sought disclosure related to third-party funding agreements through ordinary discovery, the letter noted that “plaintiffs generally object to providing it, and courts often do not compel production of the requested information.” With a rule in place, that is likely to change in the District of New Jersey.

“I think that what is evident is that two concerns animated this rule,” said Marla Decker, a managing director of Lake Whillans. “One is simply conflicts, which has been a topic in litigation finance in general and in particular, in the arbitration context where it is arguably more possible that an arbitrator (rather than a federal judge) has a relationship with a funder that could pose a conflict  . . . . The other concern is over who is really pulling the strings, who is controlling the litigation, which is a concern aligned with other rules aimed at disclosing the real parties in interest in a litigation.”

Lake Whillans, a commercial litigation finance firm, defines its practice as “the provision of capital to a claimholder or law firm in exchange for a portion of the proceeds from litigation or arbitration.” The firm notes a key feature is that any return on investment is generally limited to the proceeds of the litigation or arbitration award or a settlement. The litigation funder only gets paid if the party successfully wins or settles its case.

An ‘Imagined Problem’ 

Decker calls the idea that funders are regularly controlling litigation and not disclosing this to the courts a “bogeyman, an imagined problem.” 

While the New Jersey district court was no doubt trying to get out ahead of potential problems, Decker said, “my commercial experience is that it’s not happening.” 

She noted that claimants are usually very reluctant to give up control regarding litigation strategy or settlements. They have a built-in incentive to maintain control, Decker said: fear that the funders will serve their own interests and not the claimholders’ interests.

An issue litigation finance providers may have with this order, Decker said, is the possibility of a surge in onerous and unnecessary discovery.

“We did not have a knee jerk reaction to the order that we don’t want disclosure and that we would rather stay in the wings,” Decker said, “but we don’t want claimholders to be prejudiced by this rule and see cases be drawn into a sideshow over the litigation funder.”

The new rule states that requests for further discovery into a litigation financing agreement will be granted when there is “good cause,” but it doesn’t provide any guidance as to what that cause might be, she said.

“This is why we’d prefer it the way it’s been handled so far — courts taking these discovery requests on an individual basis and crafting an individual order as it would for any question or dispute based on the facts and circumstances,” Decker added. “The scope and regularity of disclosure in cases where it has been sought is simply not consistent and normalized enough to warrant a one-size-fits-all rule.” 

A ‘Commercial Reality’ 

On the other hand, a local rule like this one from the N.J. district court can be viewed as simply an expression of the state of things, where the court has chosen to err on the side of transparency.

“Litigation funding is being used and it’s here to stay,” Decker said. “It is a commercial reality.”

It remains to be seen if this new local rule will influence perceptions and normalize litigation finance practices. “It could be that it helps the industry by showing some of the concerns are overblown,” Decker said.

Such rules targeting litigation finance are rare in the federal courts, and this New Jersey measure is the broadest thus far at the district court level. A litigation-funding disclosure rule in the U.S. District Court for the Northern District of California applies only to class actions.

“Those cases are a little different,” Decker explained. “The court plays a different role where it has to protect the class and supervise those that have a financial interest.”

Will other districts take this up? She is not sure.

“Efforts to change the national [federal] rules have been examined several times but the rules committee has yet to adopt new rules aimed at litigation finance disclosure. . . . Perhaps the step taken by the New Jersey district court is part of the normalization of litigation funding. Inevitably, more courts will be looking at these questions.”

It probably comes as no surprise that this is a question I get a lot as in-house counsel — or at least some version of it. So by popular demand and in no particular order, here are some ways outside counsel can stand out.

1. Be Responsive

Whether right or wrong, there is an expectation that outside counsel is super-responsive. This doesn’t necessarily mean that I need an answer right away (especially if I contact you outside of normal business hours because I’m catching up on work while the kids are asleep), but it helps to know that my email was received and when I can expect a response. I typically expect some kind of response — even if it’s an “I got your email and am working on it” — within 24 hours. Before you think this is unreasonable, this is the same rule I apply when responding to my own internal clients. While I personally haven’t done this, I have seen in-house counsel call outside counsel, and when there is no pick-up, they call the very next person on their list. Of course, if you are out of the office, I highly recommend having an “out of office” automated message that gives me an idea of whom to call for backup or when you’ll be back.

2. Advise In Plain English

Unless I ask for it, I don’t want a lengthy legal memo composed of legalese that I subsequently have to read, digest, unpack, and interpret into plain English for my business clients. Ain’t nobody got time for that! The lawyers that stand out for me in this space are the ones that give me sound advice and a recommendation — with options and related pros and cons — in plain English that I could copy and paste to send to my business folks. Bonus points if the advice is in a table or graphic form that is easy to digest at a glance. If the legalese is unavoidable, I still appreciate a separate blurb I can copy and paste to send to my internal clients.

3. Be Proactive

As legal alerts or new cases come up that may affect my company, send it to me, and share why you’ve sent it to me, in plain English (again, even better if I can copy and paste and forward to my internal clients). This shows how you are invested in my success and are a true partner to my company by helping me anticipate issues. And if you’re not doing it, your competitors are.

4. Anticipate And Communicate Deadlines

This may be subjective and vary by your in-house counsel clients, but I am one who wants the litigation deadlines shared with me via calendar invites so we can share responsibility in anticipating case needs. What I don’t want is to be frantically contacted while I’m on vacation because you need my help in obtaining a declaration from a witness (who also happens to be on vacation) for a summary judgment. Also — if I take the time to send you dates when I will be out of town or unavailable, please do not schedule depositions or witness preps for those dates without checking with me first.

5. Treat Me As If You Value Our Relationship

This may seem like a no-brainer, but you’d be surprised at how some outside counsel only treat the decision-makers (like my GC or AGC) with deference and respect because their relationship is longstanding and strong. This approach is really short-sighted, especially as organizations change, and as in-house counsel move companies. The lawyers that really stand out in this space are the ones that take the time to educate and mentor me or get to know me on a personal level and try to connect me with helpful people in their network. There’s something compelling about feeling like my outside counsel is “seeing” me as an individual and not just a billable matter.

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Meyling “Mey” Ly Ortiz is in-house at Toyota Motor North America. Her passions include mentoring, championing belonging, and a personal blog: TheMeybe.com. At home, you can find her doing her best to be a “fun” mom to a toddler and preschooler and chasing her best self on her Peloton. You can follow her on LinkedIn (https://www.linkedin.com/in/meybe/). And you knew this was coming: her opinions are hers alone.

I’m sure many of our readers have been transfixed by the coverage of the tragic partial building collapse in Surfside, Florida. While search and rescue teams are still at work following the events of last Thursday, as of this writing, 18 people have been confirmed dead and 147 are still missing.

With so many impacted by the events, it shouldn’t be a surprise that the legal community counts several among the missing. As reported by Law360, three attorneys — Nicole Langesfeld, 26, Edgar Gonzalez, 45, and Linda March, 58 — still have not been located.

Langesfeld is an associate at Biglaw firm Reed Smith. She was a summer associate at the firm and started full time in 2019. According to colleagues, she got married in January — her husband, Luis Sadovnic, is missing as well — and they only moved into the Champlain Towers South two months ago.

Partner Hugh Lumpkin describes Langesfeld:

“She was a delight to work with,” Lumpkin said. “Highly intelligent, high energy and a great personality and a great person.”

During the pandemic, he and Langesfeld had worked closely together on several business interruption suits seeking coverage for COVID-19 closures.

And Doug Cameron, Reed Smith’s managing partner for the Americas, noted the firm continues to hold out hope for a positive outcome, saying:

“Nicky is not only an amazing professional, she is a lovely, talented, compassionate, energetic person and a great friend to many of us,” Cameron said. “We are missing her presence every single day.”

Gonzalez is a partner in Hidalgo Law Firm, with a practice that focuses on real estate and construction litigation as well as commercial contract disputes. Partner Marlin Muller describes the tight bond at the firm:

“It wasn’t just business,” Muller said. “Can you imagine having a job where every day you’re hanging out with your best friends all day?”
….

“I know every firm says ‘we’re family,’ but we really were,” Muller said. “We had Thanksgivings together. I mean everything. I got a birthday present in the mail yesterday from Edgar.”

One of Gonzalez’s daughters was with him the night of the collapse, however, she and her mother were rescued.

March is a New York native and moved to Florida during the pandemic. And alum of the Benjamin N. Cardozo School of Law, she’s a former administrative law judge at the New York City Environmental Control Board. Her practice is built on representing building owners, tenants, contractors, architects, developers, and others before New York City agencies.

Above the Law is hoping all those still missing are found soon.

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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. 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).