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When Brett Kavanaugh cleared his Senate confirmation hearing, the crutch leaned upon by many of his supporters was “well, the FBI looked into all this.” Hearing Dr. Ford’s measured but powerful testimony and Kavanaugh’s wildly unhinged retort made for a pretty strong case that this guy wasn’t cut out for the top plum in the legal world. Getting past that brutal day of testimony required GOP senators to come up with a clever workaround to get exactly what they wanted all along without having to take responsibility for putting a sneering, defensive jerk on the bench.

Enter the FBI, which was charged with conducting a background check to give senators a talking point to wave around when they asked America to forget everything it had just watched. The FBI would chase down all these leads and let everyone know that ol’ Brett was a boy scout.

Even at the time, the FBI’s investigation seemed shoddy and superficial. But as months have dragged on, a couple of senators have kept checking up on the FBI with law firms representing witnesses in the matter and have compiled enough evidence to write a letter to FBI Director Chris Wray asking, “Um, what the hell were you guys doing here?”

Senators Sheldon Whitehouse and Chris Coons sent a letter yesterday asking Wray to explain the investigative steps taken by the FBI throughout the course of the background check that was touted as a key reason to put a guy on the Supreme Court.

Every question reads as a “hey, we’re just looking for some help here,” but for lawyers capable of reading between the lines, every request carries with it the implied threat that “we already know you didn’t do the thing we’re about to ask.” The letter points to information garnered from other materials — including a letter from the firm of KaiserDillon, who longtime readers might remember as former Above the Law columnists — and it’s clear the senators have stockpiled more where that came from.

Impeaching a Supreme Court justice at this point in time would be just as fruitless as impeaching a president, but unlike a president, Kavanaugh will still be on the Court when the makeup of the Senate shifts again. It seems Whitehouse and Coons want to keep doing their due diligence for when that day might come.

(Read the whole letter on the next page.)

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 few years ago, the Parma (OH) Police Department decided to turn its hypersensitivityinto a criminal investigation. A local man, Anthony Novak, created a Facebook page parodying the PD’s social media front. It wasn’t particularly subtle satire. Most readers would have immediately realized this wasn’t the Parma PD’s official page — not when it was announcing the arrival of the PD’s mobile abortion clinic or the institution of a ban on feeding the homeless. Not only that, but the official logo had been altered to read “We No Crime.”

The Parma PD decided to treat this parody as a dangerous threat to itself and the general public. It abused an Ohio state law forbidding the use of computers to “disrupt” police services to go after Novak. Not that there was any disruption other than the rerouting of PD resources to investigate a non-criminal act.

The end result was the arrest of Novak, the seizure of his electronic devices, and a four-day stay in jail for the parodist before he was acquitted of all charges. Novak sued the police department, but the district court decided to award immunity across the board to everyone involved. The Sixth Circuit Appeals Court has rolled back some of that ruling, allowing Novak’s civil rights lawsuit to proceed.

The opinion [PDF] opens with a brief discussion of how parody works — and how the court treats parody — which is more reprimand than reminder.

Apple pie, baseball, and the right to ridicule the government. Each holds an important place in American history and tradition. So thought Anthony Novak when he created a Facebook page to mock the Parma Police Department. He styled his page to look like the department’s official Facebook page. But the similarities ended there. Novak shared posts like an advertisement for a “Pedophile Reform event,” at which pedophiles would receive honorary police commissions.

Novak’s page delighted, disgusted, and confused. Not everyone understood it. But when it comes to parody, the law requires a reasonable reader standard, not a “most gullible person on Facebook” standard. The First Amendment does not depend on whether everyone is in on the joke. Neither is it bothered by public disapproval, whether tepid or red-hot.

This misuse of police resources was mobilized by an entire twelve hours of posts by Novak. The page offered up a recruitment ad that “strongly encouraged minorities to not apply” and promised swift justice would be brought against an “African American woman” for “loitering outside a Subway” while it was being robbed by an “armed white male,” who was presumably not under investigation. A certain number of readers were so upset by what they saw they phoned the police department, tying it up for a total of twelve minutes.

The PD assigned two officers to the case and sent an email to Facebook reps demanding the page be taken down. The parody page made a brief appearance on the local news as Parma’s brave crime fighters announced their desire to take down this Facebook criminal. Novak deleted the page shortly thereafter, but the Parma PD continued its investigation, ultimately arresting him for “disrupting” the PD’s apparently endless supply of waste-able time.

The Appeals Court says there is no doubt Novak’s speech was protected, citing none other than The Onion.

[A] parody need not spoil its own punchline by declaring itself a parody. “Parody serves its goals whether labeled or not, and there is no reason to require parody to state the obvious (or even the reasonably perceived).” Campbell, 510 U.S. at 583 n.17. Imagine if The Onion were required to disclaim that parodical headlines like the following are, in reality, false: Presidential Debate Sidetracked By Booker, De Blasio Arguing About Best Place In Lower Manhattan To Get Tapas, or, John Bolton Urges War Against the Sun After Uncovering Evidence It Has Nuclear Capabilities. News in Brief, The Onion (June 26, 2019); News in Brief, The Onion (June 10, 2019). The law of parody does not require us to strain credulity so far. And that is not because everyone always understands the joke. Susanna Kim, All the Times People Were Fooled by The Onion, ABC News (June 1, 2015).

Unfortunately, this doesn’t necessarily mean Novak’s claims of First Amendment retaliation will hold up. As the court notes, the Supreme Court recently gave officers a free pass to retaliate against protected speech, provided they can find some sort of probable cause to support an arrest. In some cases, it could be nothing more than jaywalking or not signalling before a turn. In this case, it could be an Ohio state law the Sixth Circuit court views as unconstitutional.

First, it notes the only thing Novak engaged in was speech. And it was only determined to be criminal by using a very loose reading of a very loosely-written law.

Besides posting to his Facebook page, Novak committed no other act that could have created probable cause. In other First Amendment retaliation cases on point, by contrast, the defendant’s conduct was a mix of protected speech and unprotected conduct. That is, the defendants both said something and did something.

[…]

Here, we have nothing like that. Novak did not create a Facebook page criticizing police and use his computer to hack into police servers to disrupt operations. The sole basis for probable cause to arrest Novak was his speech. And there is good reason to believe that, based on the reasoning underlying the First Amendment retaliation cases, this is an important difference.

But if officers reasonably believed the law supported this arrest, they can avail themselves of qualified immunity. The state law against “disrupting” police operations is broad enough it could conceivably allow these officers to escape retaliation allegations. The Appeals Court doesn’t like this law much.

[T]he vague language of the Ohio statute further heightens the concern raised in Issue 2. That statute makes it a crime to “use any computer . . . or the internet so as to disrupt, interrupt, or impair the functions of any police . . . operations.” Ohio Rev. Code § 2909.04(B). To see how broad this statute reaches, consider an example. An activist tweets the following message: “The police are violating our rights #TakeAction #MakeYourVoiceHeard.” People in the community see the tweet and begin calling the police department to share their views. A small protest even forms in the town square. Police station employees spend time fielding the calls, and a couple of officers go down to monitor the protest. Under the plain text of the Ohio statute, have these acts of civic engagement “interrupt[ed]” police operations? Taken at face value, the Ohio law seems to criminalize speech well in the heartland of First Amendment protection. This broad reach gives the police cover to retaliate against all kinds of speech under the banner of probable cause. Critical online comments, mail-in or phone bank campaigns, or even informational websites that incite others to “disrupt” or “interrupt” police operations could violate the law.

The vagueness of the law could help or hurt Novak, depending on the lower court’s interpretation of the law and its application in this case. The Appeals Court only hints that an easily-abused law that blurs the line between legitimate enforcement and speech-targeting misuse may work out better for the plaintiff than the law enforcement defendants. No qualified immunity… at least not yet.

A few other claims survive as well, including Novak’s allegation that the Parma PD’s announcement it would prosecute him for his parody page was prior restraint. The court agrees, allowing this claim to continue for further factual development. A number of his other claims rest on the same issue as his retaliation claim: probable cause or the lack thereof. If it’s determined the Parma PD had no probable cause to arrest Novak, his claims of malicious prosecution and Privacy Protection Act violations will survive.

The most important decision is the most immediate: no qualified immunity for the Parma PD officers and no early exit from the lawsuit. There’s no question the search and arrest were retaliatory. The only question remaining is how much Ohio’s terrible law will help these cops get away with it.

(Opinion on the next page…)

No Immunity For Cops Who Arrested A Man For Creating A Facebook Page Mocking The Police Department

More Law-Related Stories From Techdirt:

District Court Rolls Back Magistrate’s Decision, Says Compelled Fingerprint Product Isn’t A Fifth Amendment Issue
Amazon Has Already Roped 200 Police Departments Into Its Ring Doorbell Surveillance/Promotional Scheme
WIPO Says Websites In Its Pirate Database Don’t Deserve Due Process Because ‘They Know What They’re Doing’

Ed. note: This post was originally published on July 28, 2017. In honor of this week’s bar-exam takers, we have republished it in relevant part.

“Far as draft picks, my name did not get called / Bet before I go I put a billion on the board.” — Jay Z

You just sat and took the bar exam this week. Now the grueling few months of waiting begins. I recently sat in your chair and walked in your shoes. Yesterday, a friend texted me after her third and final day of the bar exam: “Is it normal to feel like I failed the MBE???”

I let her know this was completely normal. Heck, I wanted to puke with anxiety after the third and final day of testing.

In a few months, the results will be released, and the abysmal data will become painstakingly real for a critical mass of you as test-takers. With societal expectations, as well as your own, some of you will treat the bar exam results as life or death. As Mel Brooks famously quipped, “Tragedy is when I cut my finger. Comedy is when you fall into an open sewer and die.”

But it is important that you have some perspective. You’ve made it through the grueling process of law school. Now you have to jump through one more hoop to become an attorney. Since its inception, the bar has been through several iterations. So while some older lawyers may have no empathy for recent test takers, my position tends to be a little more nuanced.

Take Michigan’s Bar Exam, for example. In the last decade, if a test taker scored high enough on the MBE, the Michigan State Board of Law Examiners did not grade the essays. In other words, you could pass Michigan’s bar exam simply by doing well on the multiple-choice section.

Then sometime around 2010, the examiners started grading the essay portions as well, no matter how you did on the MBE. Then in 2012, without an explanation or reasonable notice, they re-weighted the exam to make essays count for 50 percent of the exam. Lo and behold, scores plummeted (and ATL was there to document the carnage). In 2014, the examiners re-weighted the essay portion yet again.

In those three years, the overall passage rate in Michigan precipitously dropped from 80 percent to 58 percent, a 22-point decline — from 80 percent in 2010, to 76 percent in 2011, to 58 percent in 2012. Did law students’ aptitude or LSAT scores plummet by that much in three years? No. Yet, the continuing narrative has been how much dumber law students have become. Clearly, the issue in falling test scores is much more nuanced.

When I beat myself up over missed questions in my post-bar mental state (which I don’t recommend by the way!), I often read about others who used their initial failure as a stepping stone, rather than a road block, from sources such as ATL, Buzzfeed, and The Wall Street Journal. The list is long and distinguished, and includes such famous names as John F. Kennedy Jr., Benjamin Cardozo, and FDR.

If you need more reading therapy to soothe you during your few months of purgatory, then you can seek refuge in the words of Rudyard Kipling:

If you can keep your head when all about you
Are losing theirs and blaming it on you;
If you can trust yourself when all men doubt you,
But make allowance for their doubting too;
If you can wait and not be tired by waiting,
Or, being lied about, don’t deal in lies,
Or, being hated, don’t give way to hating,
And yet don’t look too good, nor talk too wise;

If you can dream—and not make dreams your master;
If you can think—and not make thoughts your aim;
If you can meet with triumph and disaster
And treat those two impostors just the same;
If you can bear to hear the truth you’ve spoken
Twisted by knaves to make a trap for fools,
Or watch the things you gave your life to broken,
And stoop and build ‘em up with wornout tools;

If you can make one heap of all your winnings
And risk it on one turn of pitch-and-toss,
And lose, and start again at your beginnings
And never breathe a word about your loss;
If you can force your heart and nerve and sinew
To serve your turn long after they are gone,
And so hold on when there is nothing in you
Except the Will which says to them: “Hold on”;

If you can talk with crowds and keep your virtue,
Or walk with kings—nor lose the common touch;
If neither foes nor loving friends can hurt you;
If all men count with you, but none too much;
If you can fill the unforgiving minute
With sixty seconds’ worth of distance run—
Yours is the Earth and everything that’s in it,
And—which is more—you’ll be a Man [or Woman], my son [or daughter]!

Finally, be sure to remember: worrying is like a rocking chair, sure it gives you something to do, but it never gets you anywhere. So do your best to put the bar exam in the back of your mind. Don’t beat yourself up over questions you could’ve answered better.

You have one last hoop to jump through to become a lawyer. Having to retake an exam isn’t the end of the world.

Now go back out in the world and enjoy civilization!

Renwei Chung is the Diversity Columnist at Above the Law. You can contact Renwei by email at projectrenwei@gmail.com, follow him on Twitter (@renweichung), or connect with him on LinkedIn.

Most law students think they’ll someday work at a law firm or in-house upon graduation, but some dream of using their law degrees in different, perhaps more exciting and innovative ways. Alternative legal jobs like these used to be hard to come by, but with the influence that the rise of technology has had upon the legal profession, they’re becoming easier and easier to find — and they pay quite well.

Welcome to the world of legal operations, project management, and compliance. What do these legal roles look like in 2019? A recent report from Bloomberg Law provides a snapshot of these jobs, who’s getting them, and how much money law school graduates can expect to make upon landing one of them.

Click here to access this interesting read that might just inspire you to switch gears and pursue a new career path within the legal sector.

Many law schools tout the value of collaborative learning within their schools, but outside of the proverbial foot in the door for interview purposes, many lawyers do not utilize their law school connections to their full capacities.

When looking for quick information regarding unfamiliar details in the law, most practitioners turn to more experienced attorneys within their firms. When the internal pool of knowledge comes up dry, attorneys generally look to legal search engines and treatises as a means of learning areas and processes of law with which they are not familiar. A few law school classmates and I stumbled upon an alternate means of finding information: our WhatsApp chat.

The Brain Trust Evolution

What started as a few friends discussing plans to grab drinks on Stone Street developed into an extremely valuable tool for quick legal information and a great place for colleagues to point each other in the right direction for information.

While I was working for a landlord-tenant firm in 2017, my law school classmate and friend who specialized in real estate litigation found himself scheduled to go to 111 Centre Street on a landlord-tenant matter the next day. Despite having thoroughly researched the relevant laws to his case, he was entirely unfamiliar with the realities of housing court and the internal processes. After learning that none of the attorneys in his firm were familiar with Housing Court, he reached out to me via our group chat for information regarding general procedures and customs.

I happily talked him through the process and gave him a heads up about what he would experience outside of what is written in blackletter law. This interaction set a precedent within our group and we have been regularly reaching out to each other when anyone stumbles upon a situation or question of law for which an answer is not readily available.

Unique Knowledge

Over the years our group has grown and includes practitioners experienced in real estate transactions and litigation, employment law, labor law, bankruptcy, criminal prosecution and defense, trials and investigative work, corporate law, nightlife law, complex civil litigation, sports and entertainment practice, and maritime law.

While far from all encompassing, our areas of knowledge make up a generous subsection of legal practice in New York. As most of us work in related areas, we often find ourselves helping one another on subjects varying from legal standards and procedures, to experiences with judges whom we have appeared before. Part of the benefit of a group of friends collaborating is that no one is embarrassed to ask each other “silly” questions and we regularly celebrate one another’s successes.

Client Confidentiality Never Waivers

While the members of our group regularly discuss concepts of law and details of legal practice, we have always made sure to maintain the highest level of security for our client’s identities and information. Over the years, we have discussed hundreds of nuances of law, but none of us has ever mentioned the name of a client or details of a case. This has always been a sort of unspoken rule to which we all abide based on our responsibilities as attorneys and is, of course, required by the rules of professional responsibility.

Fringe Benefits

As we continue to gain more experience and progress through our legal careers, our group has become more valuable and more able to help one another. Many of us switched our areas of practice over the years, we have won cases, lost cases, received promotions and at times lost our jobs. Throughout it all we support each other and help one another succeed, all while navigating the ever-perplexing world of the United States legal system.

Andrew C. Bershtein is an attorney at Balestriere Fariello who represents clients in in all stages of litigation, arbitration, and mediation. He focuses practice on complex commercial litigation, contract disputes, and real estate law. You can reach Andrew at andrew.c.bershtein@balestrierefariello.com.

Day in and day out, associates slavishly bill their hours at Biglaw firms across the country, wondering if perhaps someday they’ll be able to move in-house where the grass must surely be greener. After all, a life without billable hours is, dare we say, actually a life.

As it turns out, the grass there is actually greener for many in-house attorneys, as cash seems to grow on trees in this mythical, magical fairy-tale land where money and prestige converge.

While a great number of people believe that in-house lawyers earn less than their Biglaw counterparts, top in-house attorneys — the general counsel of America’s largest companies — often earn sums that exceed Biglaw partner pay.

How much more are general counsel earning than Biglaw partners? Let’s take a look at Corporate Counsel’s latest survey of the nation’s best-paid general counsel, a ranking that pulls together all the money that GCs make in total cash compensation, which is a combination of base salary, cash bonus, and nonequity incentives.

Here’s how general counsel compensation has changed since last year’s survey:

Average total cash comp for 2018’s top 100 paid GCs rose by 17.9% since 2017, up to $2,390,754 from $2,028,221. Median general counsel pay also rose for the top 100, to $1,915,452 from $1,660,405. [John] Gilmore, [co-founder and managing partner at legal recruiting firm BarkerGilmore], noted the rise in pay is part of a multiyear trend. In 2011, the average top-paid GC made $1,736,869 in cash comp. …

Average bonus and nonequity incentive packages for this group saw bigger jumps, up 5.9% and 20.9%, respectively.

Outside of the top 100, things seem little less rosy, but they’re still seeing green:

Those numbers aren’t as large when expanded outside of the 100 top-paid general counsel to include all 438 legal execs included in this year’s survey. On average, GCs on the full list earned $1,228,526 in total cash comp last year, up from $1,190,837 in 2017. The median general counsel cash comp for the entire surveyed group was $988,237, down 0.6%.

Average salaries went down by 2.4% for the total GC group to $525,024 from $538,174 in 2017. But bonuses and nonequity incentives are up, rising by 2.6% and 8.5% respectively.

And, of course, despite the fact that in-house counsel are clamoring for diversity and inclusion in the Biglaw firms they hire and within their own ranks as well, the gender wage gap for GCs is still wide open:

While average general counsel cash comp is on the rise as a whole, most women aren’t seeing those pay gains. Average cash comp for women actually dropped last year, falling to $1,088,788 from $1,147,793 in 2017. The average male GC earned $1,277,971 last year.

There was a nearly $600,000 gap in average bonus amount for women and men. Women GCs earned an average bonus of $285,754, while men brought home an average bonus of $826,131. Average compensation in nonequity had a smaller but present gap, women earning $598,896 and men $669,631. Women’s average salary clocked in at $497,958 versus $534,601 for men.

All that having been said, here are the top 10 highest-paid GCs in the country. All the GCs present here had total cash compensation of more than $4 million:

Congratulations to those taking home these impressive salaries. It’s certainly encouraging for everyone looking to make the leap in-house.

The 2019 GC Compensation Survey: Pay’s Moving On Up [Corporate Counsel]
Chart: Who Made the 2019 Top-Paid GC List? [Corporate Counsel]

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.

Ncube said the change in currency regime from multi-currency to the Zimbabwe dollar had impacted on the base for calculation of CPI indices and, hence, inflation.

Zimbabwe’s inflation was last recorded at 176% for the month of June, the highest in ten years.

“Given this transition, Zimstat will defer publication of year-on-year inflation while building up data of prices in mono-currency for a period of 12 months to February 2020,” said Ncube.

“This will ensure that we compare like with like in terms of currency regimes.”

He said a similar decision was made in 2009 after the change of currency regime, whereby Zimstat resorted to only gazetting month-on-month inflation.

“Year-on-year inflation publication will, therefore, resume after February 2020, alongside with month-on-month inflation publication.”

In the interim, stakeholders are encouraged to focus more on month-on-month inflation as barometer for price developments, said Ncube.

Post published in: Featured

* Is SCOTUS Trump’s “lap dog” — at least concerning the border wall? “[T]hat the majority rushed to give the administration everything it asked for, tells us all we need to know about the Supreme Court at this moment — and sadly, frighteningly, tells President Trump the same thing.” [New York Times]

* Where has Leah Wilson, the California bar’s executive director, been amid all of the madness concerning the state’s unhead of leak of its bar exam essay topics? As it turns out, Wilson’s son took the test this week, so she was “walled off” from everything having to do with the massive screw-up. [The Recorder]

* That’s all, folks! The Judicial Conference’s Committee on Judicial Conduct and Disability officially has no interest in taking another look at the previously rejected misconduct complaints against Justice Brett Kavanaugh related to his Supreme Court confirmation testimony. [National Law Journal]

* Cozen O’Connor recently acquired the Miller Law Group, one of California’s largest woman-owned employment law firms, and the combination will help bolster the Biglaw firm’s headcount in its its San Francisco and Los Angeles offices. Congrats! [Big Law Business]

* In case you missed it, Cyntoia Brown, the woman who’d been serving a life sentence since she was 16 years old and got her sentence commuted after catching Kim Kardashian’s attention (and the attention of the reality star cum law student’s legal team), will be released next week. [Refinery29]

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.