Category: News Feeds

One of the things we do as trial lawyers is provide prudent advice. But keep in mind that your clients need that advice now.

In one of the greatest decisions rendered by judges in our history, our highest court found a whole host of formal anti-Black discrimination to be illegal under our Constitution and ordered that the purportedly separate but equal structure that had been developed for nearly a century be eradicated “with all deliberate speed.” While one of the high-water marks of our legal development, that highly imprecise timetable was criticized. The reason is understandable: what does “deliberate speed” mean when you’re dealing with a desegregation regime under which millions continued to daily suffer?

As lawyers, this is how we sometimes think — we must be careful, cautious, deliberate. But while most of us are not as fortunate as the Supreme Court of the United States was in its 1953 term to grapple with and seek to end legalized racial discrimination, from our clients’ perspectives, their cases matter. A lot. And while lawyers at firms like ours are often hired to fight, we must always be aware that at the same time, we are counselors.

Our clients look to us for advice that we must give. And we are not only called to provide that advice with some emotional distance from the clients’ problems (since there are always people behind those problems, and all clients understandably have some emotional response to those problems), and with our legal skills (clients aren’t supposed to know the difference between a motion under Federal Rule 12 or Federal Rule 56, nor what the hell a “dispositive” motion even is), but with what many scholars have called our prudential judgment. That is a particularly considered kind of judgment that even references prudence, one of the cardinal virtues of Christian theology (along with justice, temperance, and fortitude).

And that is what we must do: not rush to judgment, not shoot from the hip, not (apply any other cliche that means make a very fast call). But while acknowledging this obligation we must remember: our clients need our advice if not quite now, then soon. That is often because they must decide promptly based on our advice, but also because of what I wrote above: they are emotionally responding to their problems and just as justice delayed is justice denied, advice too long delayed is stress created.

So let’s be careful. Let’s be considered. Let’s discuss with our colleagues. Let’s be the good lawyers our clients are relying on us to be. But let’s remember a lesson from our profession’s own history where, in one of the great judicial moments in America, our high court perhaps leaned a bit too much into being overly careful lawyers and thought “deliberate speed” was fast enough when the Nation — especially millions of Black Americans 00 needed action a lot faster.

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John Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at john.g.balestriere@balestrierefariello.com.

For corporate law departments, “doing more with less” became a pandemic-era cliche, as many faced the combination of increasing legal challenges and reduced organizational revenue. 

While this led to a heightened focus on legal operations in 2020, a new survey shows that it also failed to slow the continued rise of Biglaw billing rates.

According to the Enterprise Legal Management Trends Report from LexisNexis’ CounselLink, partner hourly rates at U.S. law firms grew 3.5% in 2020 — a slightly faster rate than the 3.3% increase from 2018-19. 

The report also showed the 50 largest firms again taking a “commanding share” of this work, with 49% of outside counsel spending going to this group.

The report wasn’t all bad news for budget-conscious GCs, however. 

The use of alternative fee arrangements also continued its steady growth for corporate counsel, with 16.8% of matters having a billing arrangement not entirely composed of hourly billing. 

As the report notes: “The percentage of alternative fee arrangements (AFAs) has been gradually rising over the years. It is noteworthy that in 2020, AFAs were utilized for more than 10% of matters in each major practice area except Commercial, which billed 9.9% of matters under an AFA in 2020.” 

Enterprise Legal Management Trends Report [CounselLink]

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Jeremy Barker is the director of content marketing for Breaking Media. Feel free to email him with questions or comments and to connect on LinkedIn. 

College athletes around the country can now start earning money from deals that use their names, images, and likenesses (NIL), but there are certain restrictions on such use, whether it be based on a state having a NIL law or a school adopting a NIL policy. Sports business reporter Darren Rovell revealed that the University of Arkansas’ NIL policy is unique in that it prohibits athletes from using school colors with their NIL deals. Would Arkansas have a colorable argument if it is challenged?

In 2008, the Fifth Circuit released an opinion in Bd. of Supervisors for La. State Univ. Agric. & Mech. Coll. v Smack Apparel Co., 550 F.3d 465, upholding summary judgment to four universities — Louisiana State University (LSU), the University of Oklahoma (OU), Ohio State University (OSU), the University of Southern California (USC) — and Collegiate Licensing Company (the official licensing agent for the schools) for trademark infringement based on a company’s use of school colors. The court held that a color scheme is protectable as a trademark when it has acquired secondary meaning and is nonfunctional. Furthermore, in that case, it was held that the color schemes combined with other identifying indicia that referred to LSU (purple and gold), OU (crimson and creme), OSU (scarlet and gray), and USC (cardinal and gold) established secondary meaning of identifying the universities in the minds of consumers as the source or sponsor of the products at issue.

The court found that Smack Apparel’s use of the color schemes along with other identifying indicia created a likelihood of confusion as to the source, affiliation, or sponsorship of the shirts it was selling, which was sufficient to establish trademark infringement. It based such an opinion on the universities using their color schemes for more than 100 years, use of the school colors by Smack Apparel with the intent of identifying the universities, and Smack Apparel’s failure to conspicuously display its logo to separate the products from the universities in the minds of consumers, among other factors.

Furthermore, the court was not convinced that use of the color schemes should be considered a fair use of unregistered trademarks. Additionally, the fact that the color schemes were unregistered did not serve as a bar to the plaintiffs prevailing because ownership of trademarks is established by use, not by registration.

Will color scheme trademark infringement claims always hold up against a challenge? Absolutely not, and the specifics of each case will control. However, brands and athletes entering into NIL deals should be cognizant of the fact that universities have litigated based on use of their color schemes and is precedent that they can rely upon in their favor.

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

Bill Cosby walked out of jail this week looking a bit worse of for wear. He’d spent over two years in prison after being convicted of aggravated indecent assault and being sentenced to three to 10 years.

The conviction cost him a bundle, and I’m not just talking about lawyers’ fees.  He fell from the heights of being America’s Dad, to the depths of being a sexual pervert charged with secretly giving Andrea Constand quaaludes in order to have sex with her.

Although he got out of jail early and gained back his freedom, he’ll never be the same. The taint of this overturned conviction will stain him forever.  Why? Because he wasn’t acquitted. The prosecution played the game wrong, and that’s why Cosby is now free.

Will this cancel the “MeToo” movement, forever? I doubt it. With the takedown of celebrities like Harvey Weinstein and Bill Cosby, the movement has made an indelible mark on the national consciousness. It will not go backward. Prosecutors, judges and police now take these allegations seriously.

But prosecutors can never adopt a stance of win at all costs. No matter how egregious the crime, the law must function with due process or, as this case showed, when prosecutors play fast and lose, eventually it will cost them.

In this case, Montgomery County District Attorney Bruce Castor agreed not to use statements from a deposition Cosby gave in 2005 in order to settle a civil law suit and win a whopping $3.8 million settlement for Constand. But some 10 years later, the new DA, Kevin Steele, changed course, backed off the deal his predecessor made and pushed to use Cosby’s admission to prosecute him just 12 days before the statute of limitations on the crime expired.

Some call this a technicality. It’s not.

If a party confesses to a crime with the understanding that his words are protected, that they won’t be used against him, or revealed to others, the power of the state or federal government must abide by that promise. It’s simply cheating to do otherwise.

The criminal justice system runs on the premise that no one is obliged to self-incriminate. The Miranda warnings exist to alert people that anything they say can and will be used against them. Imagine, a system where prosecutors (arguably the most powerful lawyers in the land) are allowed to lie whenever they want just so they’d be more likely to win. There’d be no law anyone could trust anymore. Who would need a jury, who would need a judge, if the prosecutors had all that power? Who would ever want to cooperate with them again, if that were the case?

The Pennsylvania Supreme Court overturned the Cosby verdict, ruling that it was wrong to use against Cosby a statement that prosecutors promised wouldn’t be used. Although the issue was hotly litigated in the underlying case, the lower court judges ruled in favor of the prosecution. Turns out, they were wrong. Perhaps they, too, were more interested in pushing the case forward to convict Cosby, rather than neutrally analyzing the law.

Arguably, everyone’s learned a lesson. Judges around the country will hopefully take heed and not be so quick to make rulings favoring the prosecution based on the court of public opinion.

Prosecutors might be more careful in making deals with people they suspect committed crimes, then blatantly break those deals when their office changes leaders or the cultural winds favor a new approach.

Victims of sexual assault will hopefully come forward sooner so that instead of battling lapsed statute of limitations, they have recent evidence of offenses that will convince prosecutors to push their cases forward in a timely manner.

And lastly, people who commit such sexual offenses might take a lesson from Bill Cosby. His criminal case may have been dismissed, but he’s not been acquitted.

He’s been taken down more than a notch. Even though Cosby didn’t spend his full sentence in jail, it’s doubtful he’ll ever do what he’s been accused of again, or ever regain the fame he once had.

Infamy is now where he’ll live, along with the likes of Jeffrey Epstein, Harvey Weinstein, and all the other once-famous men the “MeToo” movement has exposed.

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Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

As a result of the conservatee’s testimony at the June 23 hearing, however, Petitioner [Bessemer Trust] has become aware that the conservatee objects to the continuance of her conservatorship and desires to terminate the conservatorship. Petitioner has heard the conservatee and respects her wishes.

— an excerpt from a request filed by Bessemer Trust, the professional wealth management firm set to act as Britney Spears’s co-conservator, seeking leave to withdraw from the conservatorship. Bessemer said in its filing that it believed Spears was in the conservatorship voluntarily, adding that it is “not currently authorized to act, has taken no actions as conservator, has made no decisions as conservator, has received no assets of the estate [and] has taken no fees.”

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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.

This website and other legal news outlets have been discussing the salary increases in Biglaw over the past few months. Indeed, junior attorneys at some of the country’s biggest shops recently received pay raises, and starting salaries have crossed over the $200,000 mark for the first time. Even though Biglaw gets an inordinate amount of attention in the legal press, the vast majority of lawyers work at smaller shops. For a number of reasons, lawyers at smaller firms are unlikely to see pay raises any time soon.

Biglaw is not a rising tide that lifts all boats, and the salary decisions of Biglaw firms have little to no impact on smaller firms. As most people in the legal profession already understand, Biglaw attracts a different set of talent than other law firms. Indeed, Biglaw shops usually only hire from top law schools or top students that attend lower-ranked law schools. As a result, smaller law firms do not need to increase their salaries to attract talent since the talent pool that is headed to Biglaw typically does not look for jobs at smaller law firms. As a result, individuals should not think that increased salaries in Biglaw necessarily mean an across-the-board increase in salaries across all law firms.

Moreover, economic factors are perhaps the biggest reason why smaller firms are unlikely to raise starting salaries any time soon. Many law firms previously required an increased headcount in order to attend the court conferences and other appearances attorneys at a firm need to make on cases. Such appearances are often golden billing opportunities for law firms, and many firms are able to bill travel to and from such appearances as well. However, many of these appearances went virtual due to the COVID-19 pandemic, and lawyers missed out on the ability to bill for travel to and from these appearances. Moreover, at many of these appearances, the vast majority of the time is usually spent waiting for a case to be called. With scheduled virtual appearances, there is no waiting, and lawyers can bill a far lesser amount of time for such appearances.

As a result, many law firms had decreased billing opportunities during the pandemic, and accordingly, had a decreased need for headcount. This motivated some firms to make cuts, and the decrease in open positions made the job market even more competitive for those who were looking for legal employment. Accordingly, firms were able to attract talent with relatively low salaries because there were not too many other opportunities available. As courts reopen as the COVID-19 pandemic wanes, many appearances are still being held virtually, and this will likely be the norm for the next year or so, if not indefinitely. As a result, lower firm headcount might be here to stay, which may decrease the salary firms need to offer to attract talent.

Another reason why starting salaries and other salaries at smaller firms are unlikely to increase soon is because the job market may put downward pressure on salaries. As predicted by many people who lived through the Great Recession (including yours truly), numerous people applied to law schools recently in order to ride out hard economic times caused by COVID-19 in academia. Although, it will of course take some time for these students to work their way through law school and become practicing attorneys, the increased number of law graduates will impact the job market in the near term.

Since more people will be graduating from law schools over the next several years, the job market is sure to be more competitive. The pandemic did not measurably lead to an increase in the number of available lawyer positions, and as a result, a higher-than-normal applicant pool will be chasing a steady or perhaps a decreased number of job openings. As a result, law firms will be able to offer relatively low starting salaries to attract talent. Indeed, there were many stories during the Great Recession of salaries for lawyers at some firms starting at $40,000 or less, even in cities like New York City, and this glutted job market may be on the horizon over the next several years.

Moreover, smaller law firms do not have as much of a “keeping up with the Joneses” problem as Biglaw shops so they may not feel as much pressure to raise salaries. Biglaw firms generally like to offer the same salaries and other perks of top law firms so that they can be part of the class of shops that offer such compensation to associates. Indeed, sometimes firms offer such high salaries even though they might not be able to afford it since the image this generates about the firm is valuable. Smaller law firms are less likely to be impacted by what other firms are doing regarding compensation since these shops mostly rely on providing value to their clients rather than a brand name. As a result, smaller law firms may feel less pressure to raise salaries.

Of course, most people within the legal profession recognize that rising Biglaw salaries will not mean an increase in compensation industrywide. However, some industry outsiders and prospective law students might believe that higher Biglaw salaries mean a lucrative future as an attorney. Nevertheless, Biglaw jobs are very difficult to come by, and substantial salary increases at the vast majority of firms may not occur any time soon.

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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.

You might expect Biglaw firms to be reluctant to hire associates from one country for roles in a different country. Cross-border moves are inherently more complicated than hiring an associate from across the street. There are visa considerations, bar admission hurdles, even cultural challenges.

But in fact, despite the possible obstacles, the market for cross-border hiring is booming. In particular, Biglaw offices in the United States are increasingly open to bringing on foreign candidates. And lawyers from other common law countries are realizing the advantages of gaining experience in the American market. Building a professional network while working on the highest-value, most complex deals in the world pays dividends throughout one’s career, whether the lawyer stays in the United States permanently or moves back home. Lucrative American Biglaw salaries are also a plus (though you’ll need to tolerate high hours expectations in exchange).

If you are a well-credentialed attorney working in Canada, Australia, London, Asia, or the United States, now is a great time to consider an overseas move. And Lateral Link can help.

Growing demand for cross-border hires

International lateral hiring is not a new phenomenon. We have previously written about it in the context of moves between Canada and the United States. But relative to prior years, the level of interest among firms in hiring from overseas has escalated dramatically in 2021. Firms that have made these hires in the past are looking to bring in candidates in larger numbers. And firms that previously ruled out such hires are suddenly embracing the overseas model.

What explains firms’ growing openness to foreign lawyers? The biggest factor is that local candidates are in short supply. Many firms instituted hiring freezes or layoffs last spring, only to see unexpectedly strong demand for their services in the second half of 2020. All at once, firms have found themselves playing catch-up in a highly competitive market.

The talent squeeze is especially acute in the most expensive cities, such as New York and San Francisco. As with professionals more generally, the pandemic has caused many lawyers to reevaluate their circumstances and in some cases make major life changes. One of the most common has been to move away from high-priced urban centers. That has left firms with slots to fill in the largest markets facing a reduced talent pool. As a result, many are exploring creative solutions like hiring from abroad.

Another important factor is that cross-border hiring is working well for the early adopters. Firms have seen their peers succeed with this model, and that has given them confidence to jump on the bandwagon. The trend is catching on broadly: Lateral Link has worked with dozens of firms this year on international lateral searches.

There are some caveats to keep in mind. First, even in this tight market, firms still expect solid academic credentials, as well as strong and relevant substantive experience. Second, visa restrictions can be an obstacle. On the visa front, Canadians and Australians looking to move to the United States have an advantage. Canadians are eligible for the automatic 3-year TN visa issued at the port of entry; Australians can obtain an automatic E-3 visa prior to traveling to the United States. Candidates moving to the United States from other countries require employer sponsorship, which can be more challenging.

But for candidates who can surmount those hurdles, opportunities abound. There is demand for lawyers at various seniority levels, ranging from second-year associates up to senior associates and counsel. Firms are especially eager to hire in transactional practices such as M&A and finance. Capital markets demand is also growing. Tax and litigation opportunities are more limited, as these practices don’t cross borders as easily. Local bar admission is not necessarily a prerequisite, though of course candidates who already have it are especially desirable.

Lateral Link has specialized capabilities for cross-border lateral moves

If the prospect of a cross-border move is intriguing to you, please note that Lateral Link has a team of experienced recruiters specializing in international lateral hiring. Our primary markets are Canada, Australia, London, Asia and the United States. We work with candidates moving between any of these geographies. Firms specifically reach out to Lateral Link asking for candidates from these markets because they know our team has local expertise. We are constantly sitting down with partners to learn more about their hiring needs.

I lead our international group and bring particular knowledge of the Canadian and Australian markets. I have specialized in international moves for the past six years, and as a result, I’ve gained a strong understanding of which firms and practice groups are open to foreign candidates. I strongly advise candidates considering an international move to seek out recruiters who understand both the origin and destination markets. Real knowledge of both markets is critical to finding the right fit and ensuring a smooth transition. Lateral Link brings the necessary depth of expertise to navigate these moves successfully.

Canada

Firms considering a hire from the Canadian market frequently call me even if I am not working with the candidate because they trust my assessment of Canadian legal backgrounds. Lateral Link primarily places Canadians into the United States or London. We also place American associates into the Canadian market. Candidates interested in moving to or from Canada should contact me or my colleagues, Elizabeth Soderberg or Andrew Clyne.

Australia

As with Canada, we mainly place Australians into the United States or London. We also assist Australians with moves to Asian markets such as Hong Kong and Singapore. Australian candidates should contact me or Zach Sandberg.

London

In the London market, we mainly assist U.S.-qualified associates with moves to London and UK-qualified associates with moves to Asia. We sometimes place UK nationals into the United States, but this is more challenging due to the need for visa sponsorship. Our experts on the London market are Abby Gordon and Andrew Clyne.

Asia

The majority of our Asia work involves placements of Americans into Hong Kong or Singapore. One notable feature of Asian markets is that lateral opportunities are available for litigators who have local language skills. For transactional associates, language skills are highly valued, but they are not an absolute requirement. As with London, placements of Asian nationals into the United States are less common, due to visa requirements. Candidates interested in Asia moves should contact Justin Flowers or Andrew Ng.

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Ed. note: This is the latest installment in a series of posts from Lateral Link’s team of expert contributors. Matt Rosenberg is a Principal in New York and manages the DC area. Matt specializes in placing associates in law firms and in-house counsel positions in New York, DC, Australia, and Canada.

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Lateral Link is one of the top-rated international legal recruiting firms. With over 14 offices world-wide, Lateral Link specializes in placing attorneys at the most prestigious law firms and companies in the world. Managed by former practicing attorneys from top law schools, Lateral Link has a tradition of hiring lawyers to execute the lateral leaps of practicing attorneys. Click here to find out more about us.

It’s not a match of the top Biglaw salary scale, but no one expected that. Am Law second hundred firm Stoel Rives has DC and Minnesota offices, but the heart of the firm is out West. So when Stoel speaks about compensation, it’s giving us a window into where smaller markets like Portland and Salt Lake are going.

And the answer is: up a tad.

In an email from managing partner Melissa Jones, associates were informed that they’d be seeing a bump at all levels.

Not a match, but it’s something. We’ll have to see how the other players in these markets end up when the dust settles.

Please help us help you when it comes to salary news at other firms. As soon as your firm’s memo comes out, please email it to us (subject line: “[Firm Name] Salary”) or text us (646-820-8477). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

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

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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.

Raises may be making their way through Biglaw, but that doesn’t mean that mega firms are the only ones giving out big money. Elite boutiques have proven time and again that they have what it takes to offer the same generous salaries as Biglaw.

Take Holwell Shuster & Goldberg. The firm, founded in 2012 by former SDNY judge Richard J. Holwell along with colleagues from White & Case Michael Shuster, Daniel Goldberg, and Dorit Ungar Black, just announced their own set of raises, and, wouldn’t you know it — they are keeping up with the Davis Polks of the legal world.

The firm’s new compensation grid, that was effective July 1:

You can read the full memo from the firm on the next page.

And remember, we depend on your tips to stay on top of this stuff. So when your firm matches, please text us (646-820-8477) or email us (subject line: “[Firm Name] Raises”). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

And if you’d like to sign up for ATL’s Bonus Alerts (which is the alert list we’ll also use for salary announcements), please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

In the latest episode of The Jabot, I interview Thomas Douglas, a founding partner of Douglas, McDaniel & Campo LLC, PA, about his role as a community and industry leader. We discuss the process of opening his own firm, as well as the biggest challenges and rewards of that experience. We also chat about how to create a tolerant and affirming law firm culture. Plus we speak about balancing the pressures of the business side of the firm with the legal practice.

The Jabot podcast is an offshoot of the Above the Law brand focused on the challenges women, people of color, LGBTQIA, and other diverse populations face in the legal industry. Our name comes from none other than the Notorious Ruth Bader Ginsburg and the jabot (decorative collar) she wore when delivering dissents from the bench. It’s a reminder that even when we aren’t winning, we’re still a powerful force to be reckoned with.

Happy listening!

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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).