Category: News Feeds

Well, this is encouraging.

Magic Circle firm Linklaters has launched a new program for its U.K. employees to support those who are living in abusive situations. And the firm is backing up that commitment to its employees with cold, hard cash. As reported by Law.com, employees will have access to emergency accommodations, additional funds, and they’ll get up to 10 days paid leave, as well as access to services from U.K. charity Surviving Economic Abuse.

Linklaters will offer support to employees, and their children, who need to flee their home in an emergency, including funding three nights’ accommodation in a hotel and providing a daily living expenses allowance, the firm announced.

Additionally, Linklaters will offer affected employees access to a one-off payment of up to $6,500 to support an individual in becoming financially and physically independent from their abuser.

There will be no requirement to repay the firm and the money can be paid in a variety of means to ensure that the individual has full control of it, the firm added.

This program is launched against a backdrop of increased incidences of domestic violence. There’s reportedly been a spike in domestic violence since the onset of COVID-19 work from home policies. Linklaters global diversity and inclusion partner David Martin said of the new program:

“The future of how and where we work remains uncertain. For now, our homes are now our workplaces and it is clearer than ever that domestic abuse is a workplace issue.

“We have introduced this comprehensive package of support because we want to send a clear message to any of our people living with abuse that they are not alone, we care, and the help they need is available to them.”

Let’s hope other firms take notice and start their own programs to address domestic violence.

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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).

The 2020 Future Ready Lawyer: Performance Drivers indicated that the legal industry is experiencing a transformation, and even though most legal professionals are aware of it, few feel prepared for the future. Even before the pandemic, organizations were looking at new ways to structure themselves in the face of increasing market pressures such as dealing with increased information complexity, managing the growing demands that are put upon legal professionals, and controlling costs. In light of new challenges brought on by the crisis, we’re likely to see more scrutiny around legal professionals’ performance in the near future.

For law firms, the pandemic has thrown into relief some of the challenges that many were already experiencing in the midst of the industry’s transformation. The survey identified the following findings:

• The top changes law firms expect to make in the next three years include: Greater use of technology to improve productivity (83%); greater specialization of legal services offered (80%); and increased emphasis on innovation (75%).
• When it comes to client focus, many firms reported they struggle in their ability to keep up with changes. Just 26% are very prepared to use technology to improve client services; 26% are very prepared to offer greater specialization; and 25% are very prepared to keep pace with clients’ changing needs.
• 60% of law firm respondents plan to increase their technology budget over the next three years, but only 29% are very prepared in understanding technology solutions available, and just 27% are very prepared to use technology to be more productive.

These results indicate some significant gaps with regard to how law firms perceive technology vs. how — and whether — they understand how it can be adopted. In order to survive and grow through the crisis and beyond, it’s necessary for law firms to bridge those gaps and identify ways to leverage technology in order to capitalize on their strengths.

I recently sat down with Mark W. Brennan, lead innovation partner at Hogan Lovells, and Kathryn DeBord, CIO at Bryan Cave Leighton Paisner, to discuss how their organizations have managed their work through the crisis, and how law firms can best prepare for the future.

Supporting Your Law Firm During A Crisis

This year’s survey confirmed that technology is playing an active role in performance and profitability. Those familiar with the 2019 Future Ready Lawyer Survey may recall that technology leaders — those organizations that had already begun leveraging technology — outperformed, across the board, those organizations that were not doing so. As the pandemic took hold, law firms that already had tech solutions in place to enable remote work experienced an easier transition.

“We had many of our business continuity tools already in place, including video conferencing software, our document management systems, AI, and technology related to pricing and legal project management,” Brennan said of his team. “Clients certainly appreciated how quickly we were able to transition to the remote environment with these tools already set up.”

Having experience in tech adoption can also help a firm to jump-start the process of adopting new, necessary solutions more quickly. “We were quickly able to transition our firm to work from home globally to make sure our clients received seamless service, and we set up resources and systems of communication for our people and clients,” DeBord said. “Of note, we set up a flagship hub with tools to help client assess the potential impacts ahead across all industries and sectors and to help with crisis leadership preparedness.”

Managing Client-Firm Relationships

Conducted prior to the pandemic, the survey made clear that while legal departments are moving more work in-house, the vast majority are still relying on outside law firms for a significant portion of the work that must be done, and there are opportunities for law firms to strengthen their partnership with their legal department clients across all aspects of service delivery. As businesses across the country continue to weather the impacts of the pandemic, corporate legal departments will continue to look for ways to cut costs and evaluate the ROI of their work with outside law firms. During this period, there are ways that law firms can continually demonstrate their value — namely through communication with their clients.

“Communication throughout this pandemic is absolutely critical — and so is the strength of your culture,” Brennan said. “We are keeping a steady flow of information to our clients and our people to explain how our response is evolving. These efforts include keeping our clients informed on the latest developments affecting their business, as well as keeping our people informed about our firm and ways to stay safe.”

Brennan also noted that the pandemic could be an opportunity to identify other pathways to providing value to your clients, based on your firm’s strengths. “The current crisis has required us to think creatively to help clients solve their biggest problems, on a timescale that we have never really worked to before. Our sector focus and deep regulatory understanding has given us a unique ability to navigate issues for our clients, and we are able to bring insights from one sector to another.”

The Path To Innovation

Survey respondents named the top reasons new technology is resisted in their organizations, including organizational issues (43%); followed by lack of technology knowledge, understanding or skills (31%); and financial issues (26%). For those who see opportunities to introduce new solutions or systems into their firms, Brennan and DeBord had some advice.

“The first step is to make sure you really know what expertise already exists in the firm around identifying tech, adopting tech, and more broadly identifying and adopting new ways of working,” DeBord said. “This expertise can sit in operational groups or within practice groups. Once you have a handle on who is out there, who has successfully adopted new tech or implemented new ways of working, and who is interested in driving that effort on a firm-wide or more coordinated basis, the next step would be to identify an opportunity for a ‘quick win.’ Once you have that quick win, and can show material benefits from such an exercise, it is a lot easier to get support for more and broader tech adoption.”

“A commitment to embracing technology needs to be part of the leadership ethos and the fundamental culture of the firm,” Brennan said. “This is more than just a single evangelist. You want legal technology to become part of the strategy and culture, rather than just a band-aid.

“It’s also important to begin the process of adopting new legal tech by prioritizing the firm’s real needs instead of jumping on the latest bandwagon out of a fear of falling behind. Once you’ve identified the critical pain points, lawyers and subject matter experts in the business need to work closely together to identify the right solution — which, again, may not necessarily be the trendiest technology of the moment.”

In next month’s article, we’ll explore the survey’s findings on corporate legal departments and dive into their views on what law firms may not know about their clients, their shifting expectations, and what they’re looking for in the future.

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Ken Crutchfield is Vice President and General Manager of Legal Markets at Wolters Kluwer Legal & Regulatory U.S., a leading provider of information, business intelligence, regulatory and legal workflow solutions. Ken has more than three decades of experience as a leader in information and software solutions across industries. He can be reached at ken.crutchfield@wolterskluwer.com.

In June, Washington’s supreme court voted 7-2 to put an end to the state’s pioneering Limited Legal License Technician program. The program allowed non-lawyers to become certified to provide limited legal counseling in family law matters. In practice, LLLT offered a low-cost alternative for families grappling with divorce and child custody issues who too often go unrepresented because they cannot afford legal counsel. But the program lost money for the state bar association so it landed on the chopping block.

Because as we all know, the proper standard for evaluating public services is profitability. Just ask the Post Office right now.

Washington may not seem like a state with a critical access to justice problem but that’s because most people don’t really know much about Washington. People understand that economic inequality is universal in the country but the justice gap isn’t just about money. Most of the country can’t see much beyond Seattle whenever they think about Washington, but there’s a large, fairly rural state on the other side of the Cascade range that suffers from the exact same geographic access to justice issues that famously plague states like South Dakota. The LLLT program offered critical protection for kids whose interests often get shortchanged in family law because one (or both) parents can’t afford an attorney. And while LLLTs couldn’t aid clients in court, assistance navigating the paperwork is a godsend for these families.

The editorial board of the Seattle Times has brought media weight to the effort to restore the program, pointing the finger at attorney-driven protectionism for thwarting the program:

An empowered LLLT system should have been part of the solution. LLLTs cannot represent people in courtrooms, a well-considered restriction. But others were piled on. Regulators hobbled the program, then blamed it for limping.

LLLTs asked the Court this spring to expand into two areas — administrative hearings over public benefits including unemployment, and eviction and debt assistance — where its members could have helped with massive statewide needs. But just as it had in 2017, when LLLTs requested permission to take up elder care and health law issues, the Supreme Court said no, instead of looking toward how Utah’s broader program is working. And this year, the state Bar denied a request to help provide LLLT students family law education after a UW program ended.

Expanding the program to other areas that lower income people typically confront would seem to be the logical extension of a program designed to help lower income people with legal problems. But since the powers that be were more interested in the program as a sideshow they balked at any extension and then shrugged when few people signed up for a job with a sever cap on their opportunities.

One of the dissenters put it this way:

As Justice [Barbara] Madsen wrote in her dissent, “It is not the time for closing the doors to justice but, instead, for opening them wider.” That’s true whether or not Bar Association leaders see it as bad for profits.

Unfortunately, it can be hard to focus on legal representation policies at times like these, but that’s why keeping up the pressure is so important. Washington eliminated this program. Cuomo is gutting immigration rights defense in New York. Initiatives to defend the rights of people who can’t afford help are easy targets. Keep pushing back.

Supreme Court should reinstate low-cost legal-assistance program [Seattle Times]

I don’t expect New York and California to do the right thing. My home state and the other one across the country are deeply invested in their bar exams and the notion that those bar exams will somehow magically produce an elite group of trained lawyers able to practice law in those states. Taking and passing their test means competence, even as, for reasons lost upon me, their bar passage rates fluctuate as if some great monopolist were setting price. Sometimes in relation to one another.

But in Texas, I expect more (not from burgers — Whataburgers are terrible).  A letter, signed by all the deans of the Texas law schools, listed three options for a better bar experience. And by better bar experience, I mean one that does not put students at risk for death. The deans suggested a) an online bar exam; b) diploma privilege, or c) an apprenticeship system. The deans even offered the Texas Bar their collective school experience in terms of online test taking and apprenticeships. Imagine the safety! Imagine the data!

I think we’ve already seen what experiences await the online bar exam takers.  So I’m not a big fan of that one. At least until exam software learns a bit more about security (more on this in a bit). I have to think more about apprenticeships, but I’m concerned about the lack of uniformity of experience. Will bringing coffee to the senior partner count?

So, that leaves me with the inescapable conclusion that Texas ought to establish diploma privilege.

I’m at a loss as to the argument against diploma privilege, at least in Texas. As the deans lay out, it is quite likely that a repeat taker will pass the bar exam.  “While it is true that not every student passes the Texas Bar Exam on the first attempt, within two years, on average more than 9 out of 10 recent graduates from our ten law schools successfully pass the Texas Bar Exam. (Please see ABA Data, attached.) An even higher percentage pass the Texas Bar Exam on a later attempt.”  In other words, to the extent that the Bar creates an entry barrier, it is a temporal and impermanent one. It would be curious as to what argument suggests that more studying for a one-time test would make one more competent to practice law than the prior year. The Texas bar really doesn’t keep people out over time.

If that’s the case, what’s the benefit to the public? Actually, that might be the wrong question to ask. The right question to ask might be whether there is a less restrictive alternative that either maintains the same level of benefit to the public or increases it. In other words, there are costs to the bar exam, such as bar prep payments, that may ALSO impact the overall public. To the extent that students pass the bar and are in more dire circumstances, are they more inclined to engage in misconduct? It is possible that the bar exam itself create more costs than benefits to the public overall than alternatives like diploma privilege. To the extent we cling to the near-religious belief that the bar is a test of competence, the less likely we will be to discover the science that tells us from where incompetence comes.

We don’t have that natural experiment just yet. It’s not like Wisconsin — heart of diploma privilege — has a rash of professional misconduct. But that’s not the same as practicing in Dallas (“Texas’ California”) or Houston (“Texas’ New York”). (Sorry my friends in Austin, I couldn’t figure out anything for you here.  D.C. maybe? That’s pretty weird).

Professors Robert Anderson and Derek Muller in their article “The High Cost of Lowering the Bar” have predicted that lowering the California bar exam required passing score will lead to an increase in California malpractice, based upon examining disciplined lawyers and their alma mater’s scores. This speaks to the need for more data, and more natural experiments for states bold enough to recognize their own BLE fallibility. But, with a few exceptions such as Utah, the state bars seem reluctant to engage in such a voyage of discovery. Which is odd given that their purpose is to assure the protection of the public, right?

But Anderson and Muller also state that, at least with respect to California, “[t]here is virtually no discipline in the first ten years of practice, then the rate of discipline increases in a roughly linear fashion.”  If that’s true, what changes over the course of the later years? Shouldn’t we perhaps focus on the injury to the public that occurs then? And, given that most people pass the bar eventually in Texas, to what extent can the bar be said to have any effect other than delaying the inevitable?

Compare this potentially small benefit of the bar exam with the costs.  Students typically pay for bar exam prep courses. They are potentially unproductive or engaged in reduced productivity while studying for the bar.  To the extent they are unemployed, they may delay job searches until they take the bar. Bar loans! Those are costs regardless of whether we live in a COVID-19 world or not. And they are huge. (By the way, those bar loans are likely increasing during COVID-19 time).

But add to that some serious COVID-19 concerns, and those costs skyrocket.  The July bar exam was canceled, leaving applicants to spend more time with the costs I’ve just mentioned. And now, in Texas, the applicants get to pick their poison.

One Texas option is to show up at a hotel (“such a lovely place”) to take the bar exam in person in September. Given the most recent Texas tampon fiasco, one would hope a great deal of thought would be put into the requirements.  But regardless of the security requirements, the expenditures seem extreme to the extent it appears that the bar exam does very little to prevent entry over time. And there is tremendous risk to the exam take no matter how well COVID-19 protections are deployed. Hint: From what we’ve seen thus far, they aren’t deployed well or consistently.

Texas bar takers also have the option of an online bar exam in October. We’ve already seen the joys the online bar exam brings, particularly to those who are not Internet secure (“AT&T users”). In a matter of a week or so, we’ve had online bar exam issues, LSAT data lost, and people hacking into Twitter.  That’s pretty serious stuff, even if we ignore some of the draconian requirements some online test takers have had to suffer. (“Don’t get up! Don’t move your head! Don’t rub your nose! Are you thinking about rubbing your nose because we told you not to? Don’t! And don’t expect your phone back, either!”)

You might remind me, dear Texas, that in 2018 your task force on the Texas bar exam thought about diploma privilege before and rejected it! True, but the record upon which you contemplated it was so thin that if it were prosciutto, I’d be salivating. And I get it. There’s not a lot of data out there.  But, the report recognizes that, and almost begs for that information. The report states that “[t]he Task Force does, however, think there might be value in experimentation with alternative approaches to licensure.” And it’s a different world now, isn’t it?

So, why are you doing this, Texas? I mean, apart from the fact that the National Conference of Bar Examiners, bar prep courses, and members of the bar who randomly shout “we’ve always done it this way!” want you to. You don’t have to do it, Texas. Thousands of students across the country have risked their lives for the false god of the bar exam. They have had to test for COVID-19 after the bar exam to reunite with loved ones. The fact that thousands have endured doesn’t mean that more have to take the risk. Just like there are way better burgers than Whataburger, there are way better means of assuring the same outcome here. And we can learn in the process using the data you help obtain.

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LawProfBlawg is an anonymous professor at a top 100 law school. He hates the Bar Exam. His thoughts are his and his alone and do not represent Above the Law or his University. You can see more of his musings here. He is way funnier on social media, he claims. Please follow him on Twitter (@lawprofblawg) or Facebook. Email him at lawprofblawg@gmail.com.

There never was any doubt that the “hedge fund guys” Donald Trump railed against in his 2016 campaign and then stocked his administration with would do well out of his great 2017 tax heist “reform,” nor that the carried interest loophole he pretended to oppose would survive. After all, look at the two guys who wrote it.

Now look at them again, and consider the seat-of-the-pants, slapdash way in which they wrote it, and also the way it was passed before anyone actually bothered to read the thing, and it’s equally unsurprising that it’s riddled with errors—like the part where they wrote “athletics” instead of “athletes,” potentially screwing over billionaire team owners instead of the people of color who play games for a living as undoubtedly intended. It’s even less surprising that the rich people who did so well from it think they should have done even better, and even less surprising still that those rich people have teams of tax lawyers seeking the wring every potential loophole and advantage for all that it’s worth.

* A Texas lawyer is accused of smuggling meth into a county jail. Maybe this lawyer has been watching too much Breaking Bad. [Houston Chronicle]

* The lawyer for a man accused of firing shots after an argument over masks escalated claims his client is “not handling the pandemic well.” That seems like an understatement. [NBC News]

* A Chinese artificial intelligence company has filed a multi-billion-dollar lawsuit against Apple, alleging that Apple infringed on its patents. [CNBC]

* Senate Republicans are divided over whether they would move to fill a Supreme Court vacancy that occurs before the election. [Hill]

* A mysterious death has resulted in a $2 million life insurance settlement. Sounds like the plot of a John Grisham novel… [Daily Business Review]

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

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

According to an historian, which Supreme Court Justice “deputized” a fellow justice, Wiley Rutledge, to cast his votes on cases while he was hospitalized or otherwise unable to participate in his SCOTUS duties?

Hint: He was hospitalized multiple times over the course of three years, and was reportedly addicted to painkillers. Though a biographer says there’s no evidence the justice’s “excessive use of drugs during his last two terms on the court materially affected his performance as a justice.”

See the answer on the next page.

Only a few weeks removed from a violent attack that killed her son, Daniel Anderl, 20, and injured her husband, criminal defense attorney Mark Anderl, 63, federal judge Esther Salas has broken her silence. In a nine minute video, Judge Salas reveals heartbreaking information about the day Daniel was murdered.

Salas says that on the day Roy Den Hollander allegedly posed as a FedEx driver and opened fire on her home, she and Daniel were chatting and cleaning up after a get together in honor of his 20th birthday. Salas says Daniel’s last words were, “Mom, let’s keep talking. I love talking to you, Mom.”

Salas says she believes that her family was targeted because of her role as a federal judge. Salas ruled against Den Hollander, who died by suicide shortly after the attack, in a case challenging the male-only draft.

Salas also calls for “national dialogue” to “safeguard the privacy of federal judges,” as Den Hollander was able to obtain personal information on the judge prior to the attack:

“We are forced to live in fear for our lives because personal information, like our home addresses, can be easily obtained by anyone seeking to do us or our families harm,” Salas said. “Currently, federal judges’ addresses and other information is readily available on the Internet. In addition, there are companies that will sell your personal details that can be leveraged for nefarious purposes.”

And she puts none too fine a point on it, saying, “This is a matter of life and death. And we can’t just sit back and wait for another tragedy to strike.”

Watch the full statement below.

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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).

Rudy Giuliani’s price is above rubies. His wise legal counsel cannot be bought for love or money. How can you possibly put a dollar value on THIS?

Nevertheless, those sticklers at the Office of Government Ethics suggested that the hundreds of hours of legal services provided to the president gratis by America’s Looniest Mayor are worth something and must be declared as a gift on his financial disclosure. After all, Giuliani spent weeks gallivanting around Europe trying to prove that Joe Biden was corrupt. He pressured the Justice Department to open an investigation into allegations that Joe Biden stole $5.3 billion dollars from Ukraine, and he plastered the State Department with affidavits from Eastern European politicians who would testify to Biden’s perfidy if only they could get a visa to enter the United States. The president’s free lawyer was so successful that he managed to get his client impeached, which is no mean feat!

And yet, according to Donald Trump’s latest financial disclosure, the value of Rudy’s services is priceless, and thus doesn’t have to be disclosed.

Although we did not believe and do not believe that any pro bono publico counsel is reportable as a “gift,” at the request of OGE, we note that as has been widely reported in the media, Rudy Giuliani provided such pro bono publico counsel in 2018 and 2019. In any event, Mr. Giuliani is not able to estimate the value of that pro bono publico counsel; therefore, the value is unascertainable.

And indeed Greenberg Traurig had no more use for Mr. Giuliani’s legal services, terminating him in 2018 after he went on Sean Hannity’s show and seemed to claim it was his standard practice to pay hush money settlements out of an escrow account without telling the client first, and then billing it out as a “retainer.”

But Giuliani has found ways to monetize his time in the past two years. For instance, he met with the Justice Department on behalf of Alejandro Betancourt, a Venezuelan businessman being investigated for involvement in a billion-dollar bribery and money-laundering scheme. And he charged his pals Lev Parnas and Igor Fruman $500,000 for consulting work done for their company Fraud Guarantee. Unfortunately they got indicted for campaign finance before the venture got off the ground. But the check did clear!

So Rudy is certainly capable of putting a value on his time. But when it comes to his good buddy Donald Trump, “Mr. Giuliani is not able to estimate the value of that pro bono publico counsel.” Nor is he able to explain just how the provision of free legal services to a person who claims to have earned upwards of $446 million last year benefits the public.

But go on, put down “free legal services to billionaire” on your pro bono report to the managing partner and the state bar, and see how that one goes over. We dare ya!

Trump releases 2019 financial disclosure report [CNN]

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