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We don’t yet have a total for the no-shows for this exam, so we can’t compare this number yet to figures for past exams. In July 2018, for example, the no-show rate was a little over 10 percent.

— California State Bar spokeswoman Teresa Ruano, commenting on the projected number of people who failed to attend the July 2018 administration of the California bar exam, likely due to a topics leak that occurred just days before the test. Ruano said that more than 9,000 test-takers were originally expected, but that more than 600 people sought refunds this year due to the bar’s unprecedented disclosure of essay topics.

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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.

With ever-growing pressure to integrate in-house legal departments into the businesses they serve, we are seeing significant growth in the corporate legal operations (CLO) field. These legal operations professionals — many of whom are not attorneys — are taking on greater responsibility and are increasingly shaping corporate legal departments. And more and more, general counsels, especially of mid-size and large legal departments, are hiring legal chiefs of staff to help run their teams.

So, what is a legal chief of staff? And is this function here to stay? The short answer is “likely yes.”

The legal chief of staff is often the member of the general counsel’s senior leadership team charged with strategic thinking and planning. Though each legal chief of staff role varies, they generally manage a wide range of responsibilities to support the legal, compliance, ethics, or security operations of a business. She is often a trusted advisor who leads with regard to vision, mission, and execution. She also often oversees strategic priorities, tracks key performance indicators (KPIs), operates budget team culture, and manages communication.

“As the general counsel position evolves, so does the chief of staff position,” says Colin McCarthy, Legal Operations Analyst, Twitter, Inc.  He explains, “As the right hand to the general counsel, the chief of staff is increasingly called upon to have an applied understanding of the current legal landscape and be a champion for advancements in legal operations.  This involves using data to make smart decisions and fostering strong partnerships with finance and technology staff to develop a roadmap for the future of the legal department.” 

The legal chief of staff often facilitates internal and external meetings of the CLO’s executive leadership team, including monthly, quarterly, or annual legal all-hands meetings. She may oversee a variety of special projects, including investigations or technology integrations, staff management, and other logistical operations. In some companies, she may even be highly involved in board meetings, as many general counsels also serve as secretary of their company’s board.

McCarthy explains, “Prioritizing legal operations is important for the chief of staff position.” According to him, “Introducing tools, processes, and automation to the legal department helps make business more efficient and nimble. Tools like contract management systems, knowledge management, matter management/e-billing, and dashboards all add great value to the legal department. The information/reporting that is collected from these tools helps to inform the chief of staff/general counsel to make data-driven decisions around hiring, diversity, support, business impact, and growth.”

Depending on her role, the legal chief of staff may be an attorney, though she does not have to be one. While her legal knowledge and understanding of legal processes would likely be an asset, other skills — being organized, efficient in project management, a strong communicator, cross-functional, demonstrating emotional intelligence, financially literate, or comfortable with technology — are at least as important as legal experience or knowledge.

In reviewing various recent and past legal chief of staff job descriptions, I have noted, above all, variety. Ultimately, the seniority, status, and responsibilities of the legal chief of staff tend to vary by general counsel and legal department. It is not unusual for the legal chief of staff to compensate for general counsel’s lack of expertise in certain areas, such as in departmental financial planning, the use of technology, or other strategic skills. At its core, the role of the legal chief of staff is to do what is necessary to make the stars align for the legal department and general counsel.

What do you think? Is the legal chief of staff role just a passing trend? Or is it here to stay? Will it help create more effective and efficient legal departments? 

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Olga V. Mack is an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor at Berkeley Law, and entrepreneur. Olga founded the Women Serve on Boards movement that advocates for women to serve on corporate boards of Fortune 500 companies. Olga also co-founded SunLaw to prepare women in-house attorneys become general counsel and legal leaders and WISE to help women law firm partners become rainmakers. She embraces the current disruption to the legal profession. Olga loves this change and is dedicated to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and inclusive than before. You can email Olga at olga@olgamack.com or follow her on Twitter @olgavmack.

You might remember the alleged misdeeds of California judge Jeffrey Johnson. In January, we wrote about the list of sexual harassment allegations against him, which shockingly included groping the rear end of a fellow judge, Associate Justice Victoria Gerrard Chaney; making sexually explicit comments to multiple judges; propositioning police officers assigned to protect him; and asking a court clerk is he could touch her breasts. Now the judge is the subject of a judicial disciplinary hearing which will determine the future of his career on the bench.

The Commission on Judicial Performance has brought proceedings against the judge for the allegations of sexual harassment, misconduct and drunken behavior unbecoming a judge, for a total of 10 counts. The proceeding, before a three-judge panel of special masters, begins today and is expected to last four weeks with the Commission and the defense planning on calling a combined 168 witnesses.

As reported by Law.com, Johnson has taken responsibility for some of the accusations leveled against him while denying the most serious ones:

Johnson has responded in filings that he “accepts full responsibility for his conduct where it is clear he has faltered.” But he said the most serious allegations against him—that he groped a colleague and propositioned his security detail for sex—are false.

And his lawyer blames a “whisper campaign”:

“As stated in our filings, this is a whisper campaign to malign Justice Johnson’s distinguished career on the bench and his admirable work in the community,” Paul S. Meyer, co-counsel for Johnson, said in a statement Friday. “Despite this, Justice Johnson remains respectful and committed to the process looks forward to a careful review of the facts by those who will decide this matter.”

Johnson has also responded to the controversy with a lawsuit of his own. Last month he filed a $10 million lawsuit against the court and the administrative presiding justice, Elwood Lui, alleging emotional distress. The suit alleges Lui emailed members of the state Supreme Court, appellate court justices, and members of those courts’ staff detailing the misconduct accusations of a California Highway Patrol officer, Tatiana Sauquillo. (Sauquillo has also filed a lawsuit against Johnson, the court and the California Highway Patrol related to the alleged harassment she suffered.)

If the special masters find the allegations credible, Johnson could be removed from office.

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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 mass shooting at the El Paso Walmart was an act of white supremacist domestic terrorism. It was also an act that was incubated, fomented, and shared through 8chan. 8chan is a message board that hosts, more or less, the very worst humanity has to offer, and amplifies their messages.

Finally, Cloudflare, a web-infrastructure company, has kicked 8chan off their platform. From the Washington Post:

Matthew Prince, CEO of Cloudflare, a firm that protects sites from cyber attacks, said he decided to drop 8chan because it “has repeatedly proven itself to be a cesspool of hate.”

“We reluctantly tolerate content that we find reprehensible, but we draw the line at platforms that have demonstrated they directly inspire tragic events and are lawless by design,” Prince said in a blog post about his decision. “8chan has crossed that line. It will therefore no longer be allowed to use our services.”

On the one hand, we don’t really want “deep-web” infrastructure tech-bros making decisions on what people can or cannot see. On the other hand, sites like 8chan give aide and comfort to terrorists. If ISIS organized on 8chan like white domestic terrorists do, it would have been de-platformed a long time ago. It’s really not a hard call, once you call the terrorism this site promotes by its name.

Unfortunately, it only makes a small dent in the problem. Prince himself is aware of this:

“While we’ve been successful as a company, that does not give us the political legitimacy to make determinations on what content is good and bad. Nor should it,” Prince wrote. “Questions around content are real societal issues that need politically legitimate solutions.”…

“While removing 8chan from our network takes heat off of us, it does nothing to address why hateful sites fester online,” Prince wrote. “It does nothing to address why mass shootings occur. It does nothing to address why portions of the population feel so disenchanted they turn to hate. In taking this action we’ve solved our own problem, but we haven’t solved the Internet’s.”

I appreciate Prince’s humility here. At core, we have a legal problem with guns, white supremacy, and domestic terrorism, not a tech problem with the ability of these forces to organize. It really shouldn’t be Prince’s responsibility to do what law makers will not.

That said, everybody has to do what they can to combat this violence. What I’m going to need from Prince and Cloudflare is not just to deplatform 8chan, but to immediately deplatform 16chan, 64chan, √2chan, or whatever the hell pops up next as white supremacy training videos marked as a power-leveling through Super Mario Odyssey.

‘A cesspool of hate’: U.S. web firm drops 8chan after El Paso shooting [Washington Post]

While this column has been dark for the last couple of weeks, much like white nationalism at a Donald Trump rally, I did not leave Above the Law, but rather took a brief hiatus and now have come roaring back.  Unlike Trump, my absence was on account of paternity leave, as opposed to staffers being able to convince me to talk about infrastructure for five minutes before veering off into a rant that would run afoul of the Equal Employment Opportunity Commission.  While Vanderbilt has not replicated the unlimited paid parental leave of Susman Godfrey — though I find myself agreeing with Vivia Chen’s recent skepticism as to how far one can advance in their Biglaw career if they take advantage of these lengthy leaves — I did have the chance to spend some time at home with my #4under4 brood, that in short order shifted to #four4andunder.  Those couple (read: two) of weeks at home, provided me with a chance to step back from the day to day work of a Career Services Office and think about some broader issues in the legal recruiting world.  Indeed, it’s remarkable the sort of clarity that can descend upon you when you are awoken, for the fourth time in the night, at 3 a.m., especially after you can mentally piece together the day and where you are.

One of the early morning topics I had bouncing around my head was the structure of law firm recruiting.  With the “Fall” recruiting cycle in full gear, my interaction with law firm recruiters will reach their yearly zenith over the next several weeks.  And while I am not one to typically tell someone how to run their business in real life, that trepidation regularly falls by the wayside in this space.

In thinking about this issue, there appear to be two primary topics when looking at a law firm’s recruiting organizational chart.  First, how to structure a recruiting office; second, who should be in charge.  The first question seems to have the simpler answer.  While each firm’s personnel needs and economic circumstances will dictate the size of their recruiting staff, it seems clear that there needs to be a designated recruiting head.  This is especially true when talking about firms with revenues in the billions and offices scattered throughout every corner of the world in a way that would make Alexander the Great blush, but is also true for single-office firms.  A small army’s worth of recruiting staff will not do a firm any good if there is no unified vision and approach to attracting students and retaining attorneys.  This is not to say that a firm’s offices in New York, Houston, Beijing, and Des Moines all need to be looking for the exact same types of talent to fill their ranks, but rather, should be employing similar evaluative metrics and approaching candidates in a similar way.  An array of methods will likely lead to confusion on the part of students and attorneys of uneven skill and longevity.

The second of the aforementioned questions, what sort of person should be running the recruitment and retention effort is a bit more difficult.  In my experience, there have been three staffing approaches: the first is to have a non-attorney junior human resources professional in charge; second, let one of the currently active attorneys, almost assuredly a partner, take the reins; third, having a non-practicing attorney or other senior professional (e.g., an academic or human resources) crafting and managing the recruiting efforts.  Perhaps not surprisingly, I strongly gravitate to the third option.  Why?  Let us take a look at the first two scenarios.

There is an obvious logic to having talent acquisition and retention in the hands of human resources, that is how most other industries address such matters.  And I have great love for those who work in human resources as my late mother spent several decades in just such a role.  But as most every law student and lawyer will tell you, the legal industry is unique among professional workforces.  Especially in the realm of Biglaw, there is little ability to attract candidates by the tried and true method of paying more than your competition.  Instead, firms need to stand out for other reasons.  There’s also a good amount of egotism among attorneys and if they believe their fate is being decided by a non-attorney or C-suite-level expert, it will likely encourage them to look elsewhere.  Plus, even with years of experience, it can be difficult for a junior HR professional to fully understand, and perhaps more importantly, empathize, with attorneys.  This can lead to poor selection of law students and lateral attorneys.

Obviously, an attorney currently practicing at the firm will have a far better understanding of both the general stresses that exist for being a lawyer as well as the specific issues that can arise at a particular firm.  So why not have a partner in charge of recruiting?  My objection is quite simple: isn’t that attorney’s time better spent elsewhere, specifically billing hours and generating more revenue for the firm?  Senior partners are the ones who likely have the best understanding of a firm’s needs, but to place them in charge of recruiting means either forfeiting seven or eight figures worth of firm revenue that would otherwise be generated but for the fact that the partner is having to traipse across the country for OCI or try to formulate a firm recruiting policy post-NALP Guidelines; or requires said senior partner to add the demands of the recruiting process on top of their already exhausting work schedule.  This can be difficult for senior partners who are often advanced ages.  If the burden falls to more junior partners, then the option of not generating revenue seems off the table, so they are left only to try and balance recruiting demands on top of their existing case load.  And here I thought one of the benefits of partnership was to reduce some of the crushing workload.

This brings me to what would seem to be the best method, having a non-practicing attorney or other professional head up a firm’s recruiting efforts.  Granted, this method is probably going to be the most expensive as a firm has to pay a salary commensurate with a title such as Chief Talent Officer, but the results will more than justify the cost.  Having an attorney in the role will allow a vision of talent acquisition and retention that makes sense for law firms to be crafted, rather than having to graft on a model from the business world.  And the talent that you wish to attract will take notice.  While a non-practicing attorney might be the ideal circumstance, there are numerous others who can develop a high level of firm talent.  Some firms have started to pick up Ed.Ds from law schools as these individuals have an in-depth knowledge of how candidates got into law school, and what secrets that might hold for their future attorney performance.  And while there might be a legal learning curve if bringing on a highly experienced C-suite-level human resources professional, such a move could pay off in spades as previously garnered expertise is brought to bear in a Biglaw world that is sometimes lacking in basic understandings of interpersonal dynamics.

No law firm can succeed for an extended period of time without a continued influx of new talent and the retention of the best current talent.  While there are many different ways a firm can organize and staff its recruiting efforts, a unified approach with a single non-practicing attorney or other senior professional executive is likely going to generate the best outcomes and produce the strongest firm.

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Nicholas Alexiou is the Director of LL.M. and Alumni Advising as well as the Associate Director of Career Services at Vanderbilt University Law School. He will, hopefully, respond to your emails at abovethelawcso@gmail.com.

When all the facts of a case are dead against your client and you’ve got no way to win at trial, your only option may be a Hail Mary pass: jury nullification.

It takes a lot of finesse, a tolerant judge, a sympathetic client, and a helluva good jury.  Got all that, and you’ve got a chance of winning.

It won’t be easy, but it’s doable if you plan well.  The problem is at no time during the trial can you tell the jury that they have the right to ignore the law (which they do). However, through a combination of promoting certain themes and expressing righteous indignation (generally aimed at the power of the government), the jury will get the message that doing the right thing means acquitting even if the defendant is guilty.

Jury nullification has been around for centuries, mostly arising when the government prosecutes people on laws that are either unpopular or unreasonable to pursue. Such an example was when the government evoked the Fugitive Slave Act to prosecute people in the 1850s who helped runaway slaves.  Or, in the 1920s, when the government went after liquor distillers and speakeasy owners for violating prohibition laws.  Most recently, jurors “hung” (were not unanimous) after the trial of Scott Warren, the young Arizona geography teacher who left jugs of water, cans of beans, and blankets, to assist migrants crossing the border.  (Prosecutors recently decided to go forward with a second trial but dropped the charge of conspiracy to transport aliens and only maintained counts of “harboring” aliens.)

So how do you approach a jury nullification case when you can’t come right out and say what you’re looking for?

You set the scene, establish reasons the jury should be sympathetic, and plan carefully.

That means in openings, cross-examinations, and summation.  But particularly important is picking the right jury. You need to select jurors with open hearts who’ll base their decisions on fairness rather than on what the law demands. They should also be counterculture and generally suspect of the sweeping powers of the prosecution.

Bean counters and non-emotional types who will likely follow the judge’s instructions to a “T” — you do not want. Picking the right jurors, or at least a majority of the right jurors, is your only chance of winning.

Next, with each witness, build into whatever cross you’re doing elements of how your client is either harmless or hapless.  He didn’t run from arrest.  He gave himself up gladly.  He wasn’t on police radar before and hasn’t been since.  In sum, he’s not dangerous, he’s no kingpin. He deserves a break.

Focus on one issue, no matter how ridiculous, that gives the jurors a hook to hang on when they decide the prosecutor didn’t prove the case beyond a reasonable doubt.

For example, I recently tried a case where my client was arrested in a liquor store in possession of 19 credit cards that were not in his name.  The cards had all been forged. I won a jury nullification defense in that, even though he wasn’t acquitted, neither was he convicted.  The jury hung.  I went with the defense that the prosecutor couldn’t prove my client knew the cards were “forged” because there were so many, and he might not have looked at them all.  Sure, he knew they weren’t his, but that’s different than knowing they were forged as opposed to merely stolen.

I hoped the case would never get retried or that the prosecutor would offer him a misdemeanor.  Unfortunately, this was not to be.

On the second trial, we didn’t do as well with the jury.  They were made up of Manhattan finance types, entrepreneurs, tech engineers, bankers.  I could no longer go with the defense that my client didn’t know the cards were forged because it was no longer a surprise, and the prosecutor had done his homework between the two trials.  He’d had my client’s cell phone forensically examined and uncovered text messages full of credit-card information and code words about re-stamping.

I tried for jury nullification again but with a different theory. Because the cards displayed during the first trial had never been re-vouchered, I argued that the jurors couldn’t be sure they were the ones that had actually been taken from my client. Who knows how many cards that precinct picked up in the interim.

That, added to the fact that the case was five years old; that my client came to court in a suit and tie; that he had a young child and wife, also in court; that he hadn’t been rearrested since this arrest — I  hoped the jurors would just give him a break.

The first note was hopeful.  The jury was deadlocked. But when the judge re-instructed them to go back and start afresh with an eye toward “common sense” (generally always an enemy to acquittal), they convicted.

I’d clearly picked the wrong jury. Or maybe the case (and client) just weren’t sympathetic enough. Or maybe because almost every juror had been the victim of credit card fraud. Or maybe because I couldn’t slip in how much time my client would get in jail (3 ½ to 7 years) for such a stupid crime (he was just buying two bottles of Hennessey). But whatever the reason, the jury didn’t stick around after to explain.

My lesson: jury nullification defenses are not easy.  You’ve really got to have the political winds at your back, a wonderfully sympathetic jury, and a judge who lets you get away with (sotto voce) asking for mercy.

It’s good to have in your back pocket, but only when it’s your only choice.

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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.

What region of the U.S. has the largest contingent of 2019 law school applicants with 10,151 people hailing from this region?

Hint: The Law School Admissions Council breaks applicant data into the following regions: Far West, Great Lakes, Midsouth, Midwest, Mountain West, New England, Northeast, Northwest, South Central, Southeast.

See the answer on the next page.