'Diversity' has been a buzzword in the legal profession for decades. However, a  recent article in GP Solo, published by the American Bar Association, asserts diversity efforts have largely been aimed at law schools, large law firms and corporate counsel, thereby ignoring small law firms and solo practitioners.

Many small firm attorneys and private practitioners often wonder why or how they play a role in the diversification of the legal profession, according to Sandra Y. Yamate,  the Executive Director of the ABA Commission on Racial and Ethnic Diversity in the Profession, and the author of that article, 

"It is misguided, however, to think that sole practitioners and small firm lawyers cannot do as much to advance diversity as their colleagues in larger organizations. Nothing could be further from the truth," she writes.

In an attempt to get some answers, Above the Law recently released a Small Law Firm Diversity Survey. Respondents were asked to consider several general statements pertaining to diversity, then provide long-form answers.

An example of the statements includes "'Having attorneys or staff from diverse backgrounds is a competitive advantage for small law firms.'" Of the more than 300 respondents who participated in the survey, nearly half strongly agreed with the contention. Just over 21% indicated they agreed and 19% stated they had no opinion. The remaining responses were divided between 'disagree' and 'strongly disagree.'

One response in favor of the statement asserted that a diverse workforce encourages a range of attitudes and potential solutions. The author concluded that “can only help client service.” Conversely, a comment from a respondent against the proposition indicated there is no evidence to support the contention.

Ambrose Moses, III, an African-American solo practitioner in Columbus, expressed dismay with the survey. "Some of the attitudes and mindsets illustrated by some of the comments included in the report are disappointing because it appears that some trained and licensed lawyers are ignorant of American history or have no desire to remedy the societal and individual harm caused by bias, discrimination and injustice."

He labeled some of the comments as "troublesome hindrances to our nation achieving legal, social and economic justice for all." He also express dismay that some of the responses might have been made by judges, court personnel, government attorneys (such as county prosecutors and their assistants), attorneys general (and their assistants), U.S. attorneys and their aides, general special counsel and more.

"This is not to ignore the impact of such attitudes and mindsets held by private attorneys in large and small firms. Rather, it is essential to recognize that when such attitudes and mindsets infect the ranks of our judges, government attorneys, and court personnel, then the bias, discrimination, and injustice continues to be systemic and, I submit, both de facto and de jure,” sums Moses.

Steve Smith, President and Founder of Los Angeles-based GrowthSource Coaching, mentors business people from a myriad of professions, including law. He too dismissed much of what was highlighted in the survey, although for different reasons than Moses.

"Most of what I’ve experienced runs counter to these findings but that could be the legal crowd I’m running around with," says Smith. “Small firms and solo practitioners are usually only focused on a few things: can I find someone I can work with; can I afford the best person I can find; will they stay with me after I teach them all my secrets,” he says.

That’s not to say Smith dismisses the importance of diversity for small firms or solo practitioners. However, he says, "I’m not sure it leaks into the daily practice of running a law firm."

The general consensus in the business world is to be "considered inclusive," says Smith. However, "when it comes to running a business, diversity isn’t usually the first consideration when deciding who to employ. Most of the time, a law firm’s first consideration is whether the candidate fits with the brand and whether they will get along."

Another school of thought in the business world, he says, is that "unless a person has a degree from a name university, maybe (the employer) can pay them less. They won’t pay top dollar unless the (candidate) is bringing a big pedigree.”

According to Smith. "Diversity is fine unless it creates big inconveniences for me and my business." In expressing support for diversity, in general, Smith urges people to be honest when discussing the topic.

"I’m not down on diversity but I want the discussion to be real. It’s one thing to say it but another to live it," he says.

Tami Kamin Meyer is an Ohio attorney and writer.

There's nothing more annoying than a deadbeat client. But, there are steps you can take to make this situation less onerous or to even avoid such situations altogether.

Identifying Problematic Clients Before You Get Stiffed

“The best time not to represent a client is at the beginning,” says Terry Zimmerman, a collections attorney from Akron, Ohio, who recently retired after 39 years of practicing law. Although the adage of ‘not judging a book by its cover’ might be appropriate when selecting reading material, there are telltale indications a would-be client may not pay his or her bill, Zimmerman says.

“If a client tells you they went to an attorney who has a good reputation but that attorney did not take the case, consider there’s probably a good reason why," he says. "The client might not be a good risk.”

A client who admits to have spoken with other lawyers prior to coming to you is likely shopping for the best price. "That’s another red flag,” Zimmerman says. Another clue is “when they ask the cost of a ‘simple divorce’ or a ‘simple bankruptcy,’” he says. The general public doesn’t generally appreciate what truly constitutes a case as ‘simple’ or ‘complex,’ so asking for a price upfront without explaining the variables of the matter are a red flag they won’t pay, Zimmerman suggests.

Robert B. Walker, an estate planning, collections and creditor’s rights bankruptcy attorney in Reston, Virginia, says he “worries about the ones who have been paying regularly but suddenly become slow pay.” When that happens, the client is generally not happy with the representation they are receiving or perhaps believe they are being overcharged.

Another clue a client isn’t likely to pay their legal fees? “If a client nit-picks your bill, you probably have a problem,” Walker says. One way to minimize financial exposure, Zimmerman says, is to “get some money up front.” Besides, he says, that’s a great way to learn where the client banks, useful information in case the lawyer pursues a collection matter against the client in the future.

What to Do When a Client Doesn’t Pay

It might seem elementary, but before initiating any type of litigation, it’s imperative to know who the actual defendant is. If, for example, a lawyer represents Joe’s Autobody, but not Joe himself, it’s wrong to pursue an action against Joe rather than the business, Zimmerman says.

Therefore, when representing a company, Zimmerman says it’s imperative the lawyer obtain a personal guarantee in writing that Joe has the authority to hire the attorney on behalf of the business. Once a determination is made as to whom the defendant is, the next step is to review the fee agreement signed by the client and the attorney.

According to the Code of Professional Responsibility, written agreements are only required in contingency fee cases, “but it’s a good practice” to use them in all matters, Zimmerman says.

Walker says “he comes and goes” on the use of written fee agreements. On one hand, they spell out the terms governing the professional relationship between the lawyer and client. However, they can also lengthen the attorney’s malpractice exposure in states like Virginia, where the statute of limitations for collecting fees and pursuing legal malpractice matters differs depending on whether a written fee agreement was used or not.

Zimmerman also cautions lawyers contemplating legal action against deadbeat clients to consider whether it might also expose them to a malpractice claim initiated by a disgruntled client. Another matter to consider is whether the debt in question is consumer-oriented or not, Walker says.

“There should be a determination made as to whether the Fair Debt Collection Practices Act, and any state version, govern such collection by one attorney for a client attorney,” he says. When a lawyer tries to collect legal fees owed, such legislation does not apply. However, an outside collection agent might be deemed a ‘collector’ subject to Federal and state laws. Other rules govern the collection of past due legal fees, says Steve Smith, President and Founder of GrowthSource Coaching, a California company that educates business owners and other professionals about improving their companies.

For example, ABA Model Rule 1.5 governs fee types and fee arrangements. “One of the overriding principles is the concept of the reasonableness of fees. The overwhelming, number one reason why people avoid paying their bill is the client has decided the fees were unreasonable for the service they received,” he says.

Absent exigent circumstances, such as being up against a statute of limitations, Walker likes to send a demand letter to the client, now potential defendant, when legal fees are overdue. If nothing else, doing so helps determine whether the lawyer has the debtor’s correct address.

Smith’s approach is similar. First, he suggests sending a pleasant letter reminding or informing the client of their past due account. If a week passes with no response, he advises placing a personal call to the client to try to determine why they haven’t paid their bill or responded to the letter.

“Get them on the phone to discuss installments or even reduce the overall balance,” Smith says. No matter what is said during the conversation, he implores the lawyer to maintain a “good business decorum.” Follow up with one email a week for the next three weeks, imploring the client to pay their bill. Each missive should communicate the “increasing severity” of the matter so the client understands the gravity of the situation.

If, after 30 days, payments are still not forthcoming, it’s “time to make an assessment,” about whether to sue the client for the fees they owe, Smith says. Factors to consider include the size of the past due balance and the costs involved with hiring an outside agency or lawyer to collect the debt, assuming the case will be farmed out.

Walker cautions lawyers about handling their own collection matters. “The ability to be objective is not as great when you are representing yourself," he says. "When your professionalism is challenged, it’s hard to be objective.” 

What Not to Do

There are several steps to avoid when seeking to collect an overdue client balance. According to Smith, do not:

• Contact the client’s family members or friends to discuss
• Contact an employer to seek the garnishment of wages, since a judgment is needed to initiate a garnishment
• Allow the situation to impact your effectiveness in representing other clients

It’s also not wise to argue with the client over the past due account. Not only is that unprofessional, such behavior will likely infuriate the client and increase the likelihood he or she might file a malpractice claim. Lastly, if a lawyer seeks to hire you to collect his or her past due accounts, be sure to conduct a conflicts search before taking on the case. Do not pursue a collections case against a defendant if you represented him or her or a related entity in the past, Zimmerman advises.

Tami Kamin Meyer is an Ohio attorney and writer.

With three groups of attorneys leaving BigLaw to start their own boutique firms in January alone, legal industry experts are predicting that 2016 might be a year of major big firm-to-boutique migration. So reports Bloomberg BNA.

In the first month of the year, when there’s typically a flurry of lateral movement between big law firms, groups of lawyers from Arent Fox in California, Paul Weiss Rifkind Wharton & Garrison, and Schiff Hardin have all instead opted to form of new, small firms.

Legal industry experts note that while former BigLaw attorneys often do find that a small firm partnership is better suited to their personal needs, business development challenges and day-to day administration duties can make small firm life challenging.

Read the full article from Bloomberg BNA.

Bigger might be better in some things in life, but not necessarily when it comes to employment opportunities for attorneys.

Small law firms are coming up big as places for lawyers to find work, according to a recent article on Law Crossing. The article cited the National Association of Law Placement as saying small law firms are providing “the majority of law firm jobs taken by recent graduates.”

Economic uncertainties continue to inject volatility in the legal landscape, making large law firms wary of over-hiring. There is also tremendous fear the number of clients capable of affording or willing to pay big firm rates is dwindling.

Meanwhile, there continues to be an escalating need for legal services among the general population, who not only can’t afford huge hourly fees but who are also uncomfortable in the swanky downtown offices of The Bigs. So where do these clients turn? Small law firms or solo practitioners whose rates are usually lower than those charged by big law firms and whose lawyers are generally more accessible.

View from the Trenches

Joseph Dreitler didn’t always practice law in the small firm setting. In fact, he spent 17 years in-house at Procter & Gamble and Anheuser-Busch and another 14 toiling in various large, general practice firms. However, for the past four years, he has practiced law in a two-person trademark, copyright and patent law firm in Columbus, Ohio. The namesake of Dreitler True says his current situation is “the most fun” he’s had while practicing law, for a few reasons.

They include:

• Lack of bureaucracy
• No conflicts of interest
• Lower overhead
• The lower fees he can charge due to reduced overhead costs
• No need to try and ‘leverage’ associates to bring in revenue for the firm

Dreitler also relishes the fact he doesn’t feel pressured to bill an astronomical number of hours yearly like he did when he worked in a big firm. Something else he doesn’t miss about big firm life is partners who are supposed to behave like a team but who are really out for their own best interests.

“I don’t feel the disappointment in other partners not cross-selling my services to their client,” he says, adding that in every firm he worked, the consistent mantra was that everyone was on the same team. However, eventually Dreitler became dismayed when he finally realized that was not really the case in any of the firms where he worked. “Partners hoarded work. They did not want any other partner to even meet their clients for fear they would screw something up. Partners who had no idea of the difference between a trademark and a copyright would take on that kind of work and never call partners who specialized in that work because they wanted the hours and could care less about the clients getting the most qualified lawyers on the matter,” Dreitler laments.

Early in Evan Schwartz’s legal career, he was a small fish in a very large pond. In actuality, he was more like a guppy in a huge sea of the gigantic law firm where he worked for several years. In those days, he toiled in a firm with 300 to 500 lawyers nationwide. When he left, he was a solo practitioner for a time. His firm grew to ten lawyers, including a law partner, but today he is the namesake of Schwartz Law PC.

His firm, with offices in Manhattan and Garden City, NY, is comprised of six lawyers whose work focuses on disability law and other insurance-related matters. There are several aspects of practicing in the small firm setting that Schwartz finds appealing. He enjoys the collegiality of working in a small group, which also means attorneys have the opportunity to accept greater responsibility for their cases and clients than occurs in large firms.

“Large firms can also be collegial but are frequently more regimented and both pay and responsibility are typically more lockstep,” says Schwartz. Like Dreitler and Schwartz, Caroline Z. Worley didn’t always practice law in the small firm setting. After the namesake of Worley Law LLC, a small firm in Westerville, Ohio, graduated law school, she toiled as a staff attorney for a Common Pleas Judge.

Following that, she joined a large law firm in Columbus. Since then, everywhere she has practiced law has employed five or fewer lawyers. Worley cites the “team and family atmosphere” with all employees, both attorneys as staff, as what she enjoys most about the small firm setting.

She also relishes the lack of bureaucracy and the flexibility that working in a small group engenders. “Also, since our overhead is lower, an attorney can offer the same or better services for half the cost. There is also plenty of time to get out and serve on nonprofit boards and to give back by volunteering your time,” she says.

Those experiences differ greatly from what she underwent in the big firm setting. For example, “you usually have to run all ideas up a chain of command and change is harder and slower,” she laments. Working for a small firm, especially her own, offers Worley the flexibility to work different hours and at locations other than her brick-and-mortar location.

Pitfalls of Small-Firm-Life

While all three lawyers agree their professional lives are happier as small firm attorneys, they do admit there are pitfalls to working in such an environment. For Worley, working with a small “marketing and business development budget” is challenging. She would also like to hire additional support staff, but that is cost-prohibitive.

While he wouldn’t trade his current situation for a return to big-firm life, Schwartz says there are challenges working in a small firm. For example, the small firm scenario affords “less predictability of the business,” he says. In other words, says Schwartz, running a small firm is “more risky.”

Another pitfall of the solo and small firm environment is that, typically, attorneys receive less training before they are thrown into the fire. According to Schwartz, there is “typically less training and supervision, which can be exhilarating or disastrous, depending on the person you are and the particular circumstances of the matters you are handling.”

While certainly no one is saying Big Law is dead, there is no doubt small and solo law practices are gaining increasingly popularity among lawyers. At least that’s what Schwartz thinks. “In general, small firms help make the legal system more accessible to the general public by offering lower fees and more direct contact between attorneys and their clients. When I weighed the pros and cons of big firm life versus working in a small firm, I decided I wanted to own my own firm and control my own destiny. I have more autonomy and greater job security because I develop my own book of business,” Schwartz says.

Tami Kamin Meyer is an Ohio attorney and writer.

General Electric's general counsel's 2012 compensation package afforded him almost $11 million in cash, making him the highest paid general counsel on Corporate Counsel magazine's latest list of the nation's 100 highest paid GCs. So reports Law.com.

At $1,853,671, the average take-home pay enjoyed by the lawyers on the list this year is the highest it has ever been.

Read the full article from Law.com here.

After entering a guilty plea, John Farahi, founder of Newpoint Financial Services Inc., was sentenced to 10 years in federal prison on March 20, according to a National Law Journal story. The Beverly Hills businessman admitted his role in a $20 million Ponzi scheme and the plea could have ramifications for former Nixon Peabody securities partner David Tamman, who was found guilty for his role in the scheme.

Tamman’s lawyer, though, insists the two instances are different and “suspect the judge will listen to what we have to say and make a decision accordingly."

Read the full article from the National Law Journal here.

A Los Angeles nutrition company is locked in a legal battle with billionaire hedge fund manager Bill Ackman, who has accused the company of perpetuating a pyramid scheme. Herbalife officials said the company will up their legal defense costs from $25 million to $40 million in the wake of Ackman’s accusations, according to a Los Angeles Times article.

Ackman, who reportedly bet $1 billion the company is a sham, has said most of the company’s sales people lose money and expects the company’s shares to fall to zero.

Read the full article from the Los Angeles Times here.

Food and Drug Administration logo (Photo credit: Wikipedia)

When attorney F. Lee Bailey was indicted for mail fraud in 1973, he quoted a popular aphorism referencing the difference between how England and the U.S. treat their criminal defense lawyers.  “In England they are apt to be knighted; in the United States they are apt to be indicted.”  There is quite a bit of truth in the saying and the dangers inherent in practicing law in the U.S. are not only faced by defense lawyers.  Sensing an opportunity, the Department of Justice (DOJ) has recently set its sights on corporate in-house counsel.

In November, 2010, Lauren Stevens, a former vice president and general counsel for pharmaceutical giant GlaxoSmithKline, was indicted on federal charges of making false statements and obstructing a federal investigation.  Stevens was accused of making false and misleading statements in a series of letters to the Food and Drug Administration (FDA) on behalf of her employer.  Despite it having been obvious from the beginning that Stevens was only relaying information furnished by her client and had no intent or motive to mislead federal investigators, she was enthusiastically pursued by the DOJ.  “Where facts and law allow, the Justice Department will pursue individuals responsible for illegal conduct just as vigorously as we pursue corporations,” Tony West, assistant attorney general for the civil division, said in a statement.  It should be noted that despite the DOJ’s stated commitment to pursue corporations, GlaxoSmithKline’s name was noticeably absent from the Stevens indictment.  West continued, “Criminal charges are appropriate when false statements such as those alleged here are made to the FDA.”

Read the full article here...

Law students and pros are teaming up for a COVID-themed Pro Bono Week Celebration aimed at helping low-income clients and giving students valuable real-world legal experience. The annual event is sponsored by the American Bar Association (ABA) in conjunction with the University of South Carolina School of Law.

The awareness and advocacy week, which runs from Sunday, Oct. 25 to Saturday, Oct. 31, will culminate with a “Virtual Blitz” on Friday, Oct. 30 set to help provide free legal help for the residents of South Carolina. The theme of the week is “Rising to Meet the Challenge: Pro Bono Responds to COVID-19.”

According to the ABA, the idea for the blitz was conceived seven years ago and is traditionally an in-person event. Due to the pandemic, though, the free legal services are being offered online instead. “We did a couple of these this summer and about the only thing missing are the cookies and snacks that I made for the students and lawyers,’’ said Pamela Robinson, director of the pro bono program at the South Carolina School of Law. “We’ve had great success with our program, which we started as a way of putting students together with lawyers.”

Robinson said the virtual law clinics have been effective and will be likely to continue even after in-person events renormalize. She added, though, the remote events do not have the same ambiance as the in-person events of the past. “I’ll admit [virtual] is more cumbersome and it doesn’t have that same feel as when we are together in a room, but it works,” she said.

FROM TWITTER

LawWorks @Law_Works Oct 20

"During #ProBonoWeek: 'Pro Bono and the Sustainable Development Goals–home and abroad', 4th November 10.00 - 11.30am. With @a4id - details & registration: https://eventbrite.co.uk/e/pro-bono-and-the-sustainable-development-goals-home-and-abroad-tickets-125244153635"

The National Celebration of Pro Bono launched in 2009 as a result of increased demand for free legal services during the economic downturn. “Every October, legal organizations across the country participate in events to draw attention to the need for pro bono participation and to say thanks to those who give their time year-round. The celebration has grown from 600 events in 2009 to 1,631 in 2019,” according to the ABA.

For the blitz, which is spearheaded by the University of South Carolina School of Law Pro Bono Program and the South Carolina Bar Association, Robinson said approximately 30 lawyers and students will be paired into teams and assist clients with questions posted to SC.FreeLegalAnswers.org. Typically, users will post around 150 legal questions related to civil matters. According to the event’s organizers, the teams will not take criminal law inquiries.

The veteran attorneys participating will also guide the students in drafting model responses to frequently asked questions that can be accessed by future inquirers. “There is a little law professor in every lawyer,” Robinson said. “And they kind of like those teaching moments with the students.”

The pro bono program at the University of South Carolina is the first its kind at a law school in the U.S., notes the institution. “We believe it's important to foster the ethic of professional obligation to provide service to the public, especially to those who cannot afford legal help. The Pro Bono Program works to connect knowledge to the real world, and for almost 30 years, South Carolina Law students have been actively involved in a variety of activities in service to the community. The range of opportunities is varied and ever changing,” reads information from the school.

The intersection of law, innovation and technology has always naturally created friction, as changes to one do not necessarily accompany changes to the other. To that end, it is incumbent upon principals in the industries to constantly audit the others for the sake of the consumers and constituents who operate in those spaces.

Recently, the Rock Center for Corporate Governance, along with the Stanford Graduate School of Business and United States Department of Justice (DOJ) hosted a workshop examining one such intersection—that of antitrust law and venture capitalism. Academics, investors, legal and business experts gathered for the Wednesday, Feb. 12 event, according to Stanford University.

Makan Delrahim, Assistant Attorney General for Antitrust at the Department of Justice, touched on a broad array of challenges facing both regulators and venture capitalists, and further, what to do about them as they emerge. “In any case whether a merger is harmful, a restraint is unreasonable, or a course of conduct is exclusionary, antitrust enforcers have to ask the same question—what do we do about it now?” he asked. “In doing so, we focus on trying to restore competition in the market going forward. That often involves asking what new competitors need to thrive in a constantly changing marketplace. It is a difficult challenge, but one familiar to many investors who support early-stage companies.”

Delrahim also spoke about some of the common ground between investors and enforcers with respect to the role of antitrust regulation and the state of the industry. He said one characteristic they both share is a constant urge to prognosticate. The Supreme Court often has to, in its judicial capacity, predict how a merger will impact competition in both the near- and long-term. “We measure harm based on how the market might respond to a merger or to a course of conduct. This is not guesswork,” he said. “Neither is venture capital investment. Instead, we both look at the market, draw from economics, and make educated predictions.”

He pointed out other areas of overlap in the address: “Not only do venture capitalists and antitrust enforcers often ask similar questions, I think we share similar values. Dynamic competition should drive markets. Investment should go to the best ideas. Disruption can create consumer value,” said Delrahim. “These are the principles I have continually returned to in both of my tenures at the DOJ, and most recently as AAG. I first outlined these principles in my New Madison Approach to the intersection of antitrust enforcement and intellectual property rights. They are also part of venture capital’s DNA.”

FROM TWITTER

Thibault Schrepel @LeConcurrential

Very pleased to share "The Fundamental Unimportance of Algorithmic Collusion for Antitrust Law", published at the @HarvardJOLT. While algorithmic collusion creates no fundamental challenge, blockchain-based collusion does. Let's end the publication bias!

According to the organizers, other presenters included Michael Moritz of Sequoia Capital, Stanford Law Professor Doug Melamed and Dean Jonathan Levin of the Stanford Graduate School of Business. Melamed spoke on trends in the venture capital sector. Among some of the considerations he noted are the legal framework venture capitalists must work in, and the underlying principles of those investments. He touched on “kill zones;” investing in platform-dominated markets and monetizing data.

According to information from the Department of Justice, comments from the public are welcome. Parties are able to submit comments online through March 14, 2020, here: ATR.VCworkshop@usdoj.gov.

Attorney Carrie LeRoy started the Cyber Dignity Program in 2012 to educate teenagers on the possible legal consequences of cyberbullying, and now she hopes to take the Bay Area program national. So reports Bloomberg.

LeRoy was moved to action after a teen, who had been sexually bullied, committed suicide in Saratoga, California. LeRoy has partnered with other attorneys to spread information about cyberbullying litigation, and her program has already reached 13,000 high school students.

Read the full article from Bloomberg.

A new report from Exterro and FTI Consulting projects the e-discovery industry is going to hit $19 billion by 2023, up from $10 billion last year, as demand for technology and services is soaring.

The report also shows robust activity across the industry, noting that the number of investments, mergers and acquisitions in the space jumped from 24 to 44 between 2017 and 2018. The study, titled 'The State of E-Discovery 2019 Report,' examined the state of the emerging legal sector and highlighted trends, relevant legislation and case law.

“The challenges facing legal and e-discovery teams are broadening as the intersection of e-discovery, data security, and data privacy increases,” reads the report. “But embracing technologies and effective business processes can give legal teams exciting new capabilities to address these challenges.”

Globally, two landmark pieces of legislation, the General Data Protection Regulation (GDPR), which governs how organizations collect and use data of citizens of the European Union, and the California Consumer Privacy Act (CCPA), which has bolstered residents rights with respect to their data, are likely to be key factors influencing the direction of the industry, according to the report.

Further, 10 additional states have introduced similar legislation, and Sen. Ron Wyden (D-OR) has introduced a draft “Consumer Data Protection Act” as “a growing number of US technology giants are calling for a domestic version of GDPR.” But, striking a balance between users’ rights and protecting sensitive information may require a good deal of finesse. “Despite the major risks of non-compliance with privacy regulations, cybersecurity still remains the top concern for information governance teams,” reads the report.

From Twitter
HaystackID @HaystackID
“While the challenges of document review vary from day-to-day, six fundamental challenges appear to be common to all legal departments dealing with the discipline of #eDiscovery during document reviews.” https://buff.ly/2PSaq8i #LegalTech

Another key trend in e-discovery is an increased reliance on alternative legal service providers over law firms. According to the report, legal services providers are pulling in more money spent on e-discovery than law firms to the tune of 33% to 23%. In that vein, lawyer management of e-discovery is also down, with attorneys managing the process for only 34% of in-house legal departments, a number down 8% between 2017 and 2018.

Where Do Judges Stand?

According to the report, more than 1 in 5 judges reported feeling they should “act as an ‘active e-discovery case manager.’” As such, 56% said a separate case manager who promptly addresses issues as they arise is preferable. Another report from earlier this year found judges have reported an overall improvement in e-discovery “competence,” perhaps reducing the need to mitigate conflicts altogether. Reportedly, “lawyers who have appeared before the judges in the past year exhibited ‘an adequate level of knowledge’ 56% of the time, with only 18% lagging,” according to previous coverage of that survey from Progressive Law Practice.

Georgetown Law and Exterro Partner in e-Discovery Education Initiative

A new “legal thought leadership educational initiative” called edTalks, will feature discussions surrounding best-practices and cutting edge ideas and concepts, according information from Exterro. The 15 minute talks will be moderated by Mollie Nichols of Hogan Lovells, Nancy Patton at Exterro and David Greenwald of Jenner & Block. The next webcast is set for September 18, at 1 p.m. EST.

Conservative microblogging platform Parler and E-commerce giant Amazon traded barbs as the former sued the tech retailer, alleging it improperly removed the blogging platform from its offerings.

Amazon said Parler was notified its content was in violation of their agreement and requested it be removed. Amazon points to users plotting acts of violence, including politically motivated rape and torture.

“[Amazon Web Services] notified Parler repeatedly that its content violated the parties’ agreement, requested removal, and reviewed Parler’s plan to address the problem, only to determine that Parler was both unwilling and unable to do so,” states legal filings from Amazon. “AWS suspended Parler’s account as a last resort to prevent further access to such content, including plans for violence to disrupt the impending Presidential transition.”

Parler is alleging Amazon violated antitrust laws including the Sherman Antitrust Act. According to the complaint from Parler, which describes itself as an alternative to Twitter, Amazon Web Services (AWS) is in violation of antitrust provisions since it has signed a “multi-year deal so that AWS could support the daily delivery of millions of tweets.”

“AWS is violating Section 1 of the Sherman Antitrust Act in combination with Defendant Twitter,” according to Parler’s complaint. “AWS is also breaching it[s] contract with Parler, which requires AWS to provide Parler with a thirty-day notice before terminating service, rather than the less than thirty-hour notice AWS actually provided. Finally, AWS is committing intentional interference with prospective economic advantage given the millions of users expected to sign up in the near future.”

The civil suit sought a temporary restraining order, damages and preliminary injunctive relief as Amazon was preparing to stop hosting the app. Taking it down, the company argued, “is the equivalent of pulling the plug on a hospital patient on life support. It will kill Parler’s business—at the very time it is set to skyrocket.”

FROM TWITTER

John Aravosis @aravosis

"Dear @Amazon: You donated to the Majority Committee Pac that supported the election of 120--or 82% of the--Electoral College coup-supporters in Congress. We demand that you ask for your money back & renounce future donations to this and other PACs that support these members."

Amazon said its actions had nothing to do with stifling competition or suppressing speech. It said, instead, removing access to Parler through AWS was done in order to protect the public. “This case is not about suppressing speech or stifling viewpoints. It is not about a conspiracy to restrain trade. Instead, this case is about Parler’s demonstrated unwillingness and inability to remove from the servers of Amazon Web Services (“AWS”) content that threatens the public safety, such as by inciting and planning the rape, torture, and assassination of named public officials and private citizens,” reads the filings. “There is no legal basis in AWS’s customer agreements or otherwise to compel AWS to host content of this nature.”

Amazon further argued its actions do not constitute a violation of any anti-monopoly laws. “Parler does not even claim Twitter and AWS communicated about Parler, much less formed an agreement. Nor could it, as a senior AWS executive testified AWS did not authorize and is not aware of such communications.”

According to information from the Federal Trade Commission (FTC), Congress initially passed the Sherman Act in 1890. Its provisions outlaw “every contract, combination, or conspiracy in restraint of trade,” and any “monopolization, attempted monopolization, or conspiracy or combination to monopolize.”

The act aims to protect competition and consumers and exists to provide incentives for businesses to “operate efficiently, keep prices down, and keep quality up,” notes the FTC.

The regulatory body says: “Long ago, the Supreme Court decided that the Sherman Act does not prohibit every restraint of trade, only those that are unreasonable. For instance, in some sense, an agreement between two individuals to form a partnership restrains trade, but may not do so unreasonably, and thus may be lawful under the antitrust laws.”

Among the acts it identifies as “so harmful … they are almost always illegal” are arrangements to rig bids, fix prices and divide markets.

The fallout from the 2020 presidential election will likely span time, political affiliation and legal field. There is certainly no shortage of controversy surrounding the election and subsequent fight over its validity.

Some have called out President Donald Trump’s legal team for making claims of fraud and malfeasance without having credible evidence to back it up. Others, like the president himself, insist there was clear wrongdoing during the Tuesday, Nov. 3, contest. To that end, the American Bar Association (ABA) has published a new legal fact check focused on the ramifications Trump’s legal team could face, if any, should the courts continue to toss his legal challenges contesting the outcome of the election.

“In the wake of last month’s presidential election, the campaign and allies of President Donald J. Trump have filed several dozen lawsuits, alleging unsubstantiated widespread irregularities and fraud. In the ensuing weeks, the lawsuits have been widely ridiculed,” reads information from the ABA fact check.

The ABA notes two Republican lawyers who fought for President George W. Bush’s reelection effort in Florida during the 2000 election have even chastised Trump’s efforts.

In many cases, the President’s lawyers have been “chided” by both state and federal judges for repeated mistakes, according to the ABA. So, the legal trade association asks: will they be punished?

Filing frivolous lawsuits does come with tangible penalties. Law & Crime notes one of Trump’s campaign lawyers has already once been penalized for such actions in a bizarre case involving an Arizona town called Snowflake and medical marijuana cultivation. In 2018, attorney Kory Langhofer, who is working on behalf of Trump in Arizona, was fined close to $150,000 for filing “frivolous litigation” in that instance, reads Law and Crime.

“Lawyers are officers of the court and must follow certain court rules when they file lawsuits. If a lawyer violates these rules, the client’s lawsuit can be dismissed, and the court may sanction the lawyer or client,” notes the ABA. “Also, in distinct proceedings, a lawyer can be disciplined if she violates a jurisdiction’s ethics rules relating to the filing of those lawsuits.”

FROM TWITTER

Lee Zeldin @RepLeeZeldin

"The lawsuit filed by TX to the Supreme Court & supported by MANY others throughout the US is a very strong, compelling argument in favor of & defending the constitution, law, & LEGAL voters of GA, PA, MI & WI, etc. It's a must read detailing eye-popping, confirmed wrongdoing."

According to information from the ABA, ethics rules and court procedures vary from jurisdiction to jurisdiction, but they all prohibit lawyers from filing lawsuits that “lack merit” or are “frivolous.”

“But lawyers are permitted to file lawsuits where they know enough facts to believe that the eventual proof will support the allegations of the complaint, without knowing all the facts at the time the lawsuit is filed,” according to the ABA.

Lawyers are also required to cite “settled legal theory” or state a new one they believe should be accepted. So, lawyers who file complaints based on a legal theory that no reasonable court would accept are, as such, in violation of that requirement.

Further, in instances where the president’s legal team has asked for emergency relief, it is incumbent upon those attorneys to find evidence to back their claims with the same speed and urgency they are seeking from the court, according to the ABA. In most instances, the President’s lawyers failed to do so.

“Legal experts say a fine line separates a ‘frivolous’ suit from one that might be ‘meritless’ but advocates a new legal theory. So far, state and federal judges, many of whom have harshly criticized claims by Trump-allied lawyers, have yet to sanction the lawyers under state judicial rules or federal Rule 11. The standard is high for imposing such sanctions,” according to the ABA.

Any lawyers accused of such violations will be vetted during professional conduct and disciplinary hearings within their respective states, notes the ABA. The standard of proof in these matters will most always be “clear and convincing evidence” of wrongdoing.

During his keynote address at the American Conference Institute’s 37th annual FCPA meeting, Acting Assistant Attorney General Brian C. Rabbitt touted the Department of Justice’s “historic” efforts during 2020.

Each year, the anti-corruption community comes together to discuss the legal landscape regarding compliance and criminal activities through the lens of the Foreign Corrupt Practices Act (FCPA). This year, Rabbitt said despite many obstacles, he was proud of what the department was able to accomplish with respect to its enforcement initiatives.

“It is no exaggeration to say that the Criminal Division’s work in 2020 has been historic—both in terms of the results we have achieved and the circumstances under which we have achieved them. Despite the significant obstacles presented by the pandemic, the Division has remained open for business,” said Rabbitt in his remarks.

Rabbitt touted “all-time high” enforcement numbers but reminded the conference’s virtual attendees that statistics do not tell the whole story, especially when it comes to white-collar enforcement. He said cold, hard facts and figures do not always accurately reflect the “nature and quality” of the department’s cases. “But even with those caveats, the Criminal Division’s statistics over the past year demonstrate that our white-collar enforcement work—and our enforcement of the FCPA in particular—has been active and successful in 2020, even in the face of significant headwinds,” he said during the address.

According to the U.S. Securities and Exchange Commission, the Foreign Corrupt Practices Act was enacted in 1977 and, among other things, “generally prohibits the payment of bribes to foreign officials to assist in obtaining or retaining business.” The law can be applied to conduct anywhere in the world and applies to publicly traded companies, their officers, directors, agents, employees and stockholders.

The FCPA also demands issuers keep accurate books and have adequate internal controls capable of providing that reasonable assurance transactions are properly executed and assets are properly accounted for.

FROM TWITTER

FCPA Matters @FCPA_Watch

[Webinar] 20/20 Hindsight: Anti-Corruption Developments in 2020 - December 9th, 12:00 pm - 1:30 pm CST

Rabbitt said the Criminal Division’s Fraud Section has already reached resolutions with dozens of corporations this year and is expecting several more significant resolutions before 2020 wraps up. He noted Fraud Section resolutions have totaled $8.75 billion in funds paid by companies, which is up from 2019’s $3.21 billion.

“Notably, many of our corporate resolutions in 2020 included coordination with one or more foreign enforcement authorities—an increasingly important aspect of our work,” he added. “Nevertheless, of the nearly $9 billion companies paid to resolve matters involving the Fraud Section in 2020, almost half—$4.28 billion—was paid directly in penalties and restitution in the United States, which demonstrates our leading role in global white-collar enforcement.”

Further, Rabbitt pointed out the Criminal Division’s Fraud Section has helped secure nine corporate guilty pleas, 16 deferred prosecution agreements and eight non-prosecution agreements. These cases led to the collection of more than $14 billion in charged losses and close to $12 billion in “global payment and amounts.”

From trampled Walmart shoppers to fired freight drivers, here are some notable verdicts from November.

Most Big Box Verdict: Walmart Loses Appeal of $17M Verdict for Trampled Woman

The West Virginia Supreme Court upheld an approximately $17 million verdict won by a woman injured last year during a shoplifting incident at Walmart, according to an article from WCHS, an ABC affiliate. Diane Ankrom, who had her granddaughter with her, was trampled by a suspected thief who was running from store employees. Ankrom required more than 20 hospital visits as a result of the ordeal.

Most Delivered Verdict: Penn. Woman Facing Decades in Prison for Delivering Drugs to Overdose Victim

A Pennsylvania jury found Lisa Schmidt guilty of three felonies after she delivered drugs to a woman who eventually died of overdose, according to an article from the River Reporter. As a result of the verdict, Schmidt faces up to 40 years prison time. Two other individuals were arrested, charged and pleaded guilty in connection with the incident, notes the article.

Most Transported Verdict: Former FedEx Driver Wins $6.85M in ADA Lawsuit

A former FedEx Freight driver won a $6.85 million verdict against the shipping giant after a jury found his rights were violated under the Americans with Disabilities Act, according to an article from Freight Waves. The dispute arose after David Goldstine was terminated following a disagreement about his inability to secure a damaged trailer door due to unsafe weather conditions and his “rebuilt” knee. FedEx is considering an appeal of the decision.

Most Drawn Out Verdict: Mass. Man Finally Heading to Prison After 17 Years of Post-conviction Motions

The Massachusetts Supreme Judicial Court said the first degree murder conviction of Shane Moffat will stand, according to an article from WWLP.com. Moffat was convicted of killing Malcolm Howard in 1999 but saw his subsequent appeal stayed a number of times as he pursued post-conviction motions. After a 17-year effort to overturn the ruling proved unsuccessful, Moffat was sentenced to life.

Most Technological Verdict: Apple Ordered to Pay $503M in Latest Salve with VirnetX

Apple is on the hook for $503 million after being ruled to have infringed upon VirnetX patents, according to an article from Law Street. To that end, a jury in the Eastern District of Texas concluded the tech giant owes VirnetX $0.84 on each of 598,629,580 devices with respect to iMessage and FaceTime features. The litigation dates back a decade and spans a number of lawsuits and appeals. “VirnetX sued Apple for patent infringement claiming that Apple infringed via a VPN On Demand feature, which Apple used to allow its users access to a VPN connection,” according to the article.