'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...

The law does not always keep pace with reality. In the instance of deepfakes, it’s the law’s ability to keep pace with virtual reality that’s being called into question.

On Thursday, June 13, the House Permanent Select Committee on Intelligence took a deeper look at the deceptive chaos the emerging technology might bring and convened a panel of experts to look at ways to prevent its abuse. Deepfakes are hyper-convincing videos doctored to show something that never actually happened.

Per the committee, the meeting took place regarding manipulated media, national security and artificial intelligence components associated with the deepfake” technology. The law and technology panelists lined up to offer testimony included:

• Danielle Citron, a law professor at the University of Maryland’s Francis King Carey School of Law and an Electronic Privacy Information Center (EPIC) board member
• Jack Clark, the policy director for OpenAI
• David Doermann, a professor at SUNY Empire Innovation and a director at the Artificial Intelligence Institute for the University at Buffalo
• Clint Watts, a Distinguished Research Fellow at the Foreign Policy Research Institute and a Senior Fellow for the Alliance for Securing Democracy, German Marshall Fund

More Than One Approach to Exposing Deepfakes

Citron said a combination of factors, including the law, will be needed to combat the malicious intent of the doctored information. "We need a combination of law, markets, and societal resistance," said Citron, according to information from EPIC, adding that "the phenomenon is going to be increasingly felt by women and minorities."

EPIC has called for the “Universal Guidelines for Artificial Intelligence” as the foundation of any federal laws governing its use. Artificial intelligence is a key component in the spreading of misinformation. The guidelines include several tenants such as the:

• Right to Transparency
• Right to Human Determination
• Identification Obligation
• Fairness Obligation
• Accuracy, Reliability, and Validity Obligations
• Public Safety Obligation
• Termination Obligation

At the hearing, Clark called for funding, education and “institutional intervention” in order to mitigate the confusion caused by misinformation spread through the tech.

From Twitter:
Ashley Pilipiszyn ‏ @apilipis 
"@jackclarkSF calls for institutional interventions, increased funding, measurement, norms, and comprehensive AI education as pathways to address the national security challenges of AI, manipulated media, and 'deepfakes': https://www.youtube.com/watch?v=tdLS9MlIWOk …

House Committee’s Purview is Expansive, Scope Wide

According to information provided by the Congressional committee, topic associated with deepfake technology will cover the law, politics, security and human interest. They include:

• Future advancements
• Detecting and tracking
• How deepfakes might allow individuals to deny media
• Its psychological impact
• Counterintelligence fears
• Internet platforms’ role in mitigating fake information
• Legal challenges
• The appropriate role of the federal government.

“Deepfakes raise profound questions about national security and democratic governance, with individuals and voters no longer able to trust their own eyes or ears when assessing the authenticity of what they see on their screens,” reads information from the committee.

Promotional materials for the hearing state this is a first-of-its-kind hearing as there has not, to date, been a House committee meeting dedicated specifically to deepfake technology and other AI-generated faux data.

More than 260 federal judges weighed in on e-discovery as Exterro and EDRM Duke Law partnered to generate the 5^th Annual Federal Judges Report.

The survey measured the thoughts, perspectives and practices of the participating judges, according to the survey administrators.

“Examining the data, the message to e-discovery practitioners was clear: Stay on top of e-discovery. Request judicial assistance when needed, as most judges will wait for a request before they get involved in discovery disputes,” the report reads.

The report found competence in dealing with e-discovery is improving. 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 the survey. Digging deeper, the survey specifically asked judges to measure their feelings about lawyers in their court:

“In the past 12 months, the lawyers appearing before you have shown an adequate level of knowledge and expertise in e-discovery matters.”

• Strongly disagree: 3%
• Disagree: 15%
• Neutral: 26%
• Agree: 52%
• Strongly agree: 4%

Other takeaways from the report show judges are slow to sanction counsel on e-discovery matters, with 13% of the judges surveyed reporting taking such action. However, 74% of those asked said they have taken “affirmative action,” such as requiring conferences or issuing warnings, to address problems in the past 12 months.

Says one judge surveyed in the report: “Ideally parties should be required to make a real effort to resolve issues on their own. Judicial resources should not be expended on resolving discovery disputes until the parties have first made a substantial effort on their own.”

The report also suggests it is important to “understand your client’s IT infrastructure and cooperate with opposing counsel to make sure you can manage e-discovery without judicial intervention.”

Further, 63% of judges said they, themselves, need additional education or training in some areas of e-discovery, while 70% called for a “modest” boost in education or training.

Cicayda Announces New Production Capacity for Cloud-based eDiscovery

As e-discovery grows in popularity, capacity and innovation are likely to follow. Recently, legal technology company Cicayda boasted its cloud-based e-discovery platform, Reprise, can produce more than 2.4 million documents in less than a day. The new solution does not charge by volume of gigabytes or per page, as its costs are included.

“One of the most stressful events in the eDiscovery process is production time. We attempt to reduce client stress by providing real time quality control checks, incredible production speeds, simple processes and we don’t charge extra for it, so there are no additional charges or surprises,” said Billy Hyatt, CEO of Cicayda in a statement. “We are committed to providing the most comprehensive and innovative solutions with a Discovery ecosystem for this and other cumbersome processes.”

The platform is designed to provide flexibility for single use and rolling production, according to an announcement from the company. The platform:

• Includes text, document endorsements, placeholder documents, a customer production load file, and natives;
• Includes “easily” produced data redacted and stamped with applied Bates numbers; and
• Is capable of producing PDFs with “embedded text, TIFF image, or JPEGs as the ESI agreement dictates.”

Technology often pushes the legal envelope, as regulators and lawmakers grapple with advancements that often do not fit neatly into the scope of existing legislation.

It, too, can spark debate in the public and legal arena with respect to what’s appropriate, what’s allowed and when the rule of law needs to adjust.

Recently, what some saw as a fun way to reminisce about old hairstyles became the subject of speculation and conspiracy theory. Tech humanist author Kate O’Neill took to Twitter to posit about the Facebook “10 year challenge,” stoking such conversations.  

Kate O'Neill @kateo

"Me 10 years ago: probably would have played along with the profile picture aging meme going around on Facebook and Instagram

"Me now: ponders how all this data could be mined to train facial recognition algorithms on age progression and age recognition"

But, the subject of facial recognition was not merely internet fodder. The American Civil Liberties Union (ACLU) has weighed in with respect to its threat to disadvantaged minorities. The advocacy group responded to an Amazon shareholder resolution expressing concerns about the retail giant’s use of the technology.

ACLU Calls for Justice After Shareholder Resolution

Shareholders filed a resolution asking Amazon’s board of directors to ensure facial recognition technology is not sold to the government without first making sure the technology will not threaten human and civil rights. According to the ACLU, the resolution will be taken up at Amazon’s 2019 annual meeting.

“It shouldn’t take a board or shareholder intervention for the company to do right by immigrants, people of color, religious minorities, protesters, and activists who are disproportionately harmed by such new surveillance technologies,” said Shankar Narayan, the Technology and Liberty Project Director of ACLU, Washington. “We continue to urge Amazon to heed calls from civil, human, and immigrants’ rights groups, academics, lawmakers, and its own shareholders, employees and consumers to stop selling facial recognition technology to the government.”

Further, reports have surfaced that Amazon sat down with Immigrations and Customs Enforcement officials to discuss the use of facial recognition, alarming some. The ACLU claims the company’s technology erroneously and disproportionally matched the pictures of Congressional members of color with those used in arrest reports. Month ago, letters were sent to other technology giants Google and Microsoft, also looking to inhibit the sale of the technology, according to the ACLU.

Google Wins Facial Recognition Case

In one case (Rivera v. Google Inc.) dealing directly with facial recognition data, FindLaw reported that Google was found to be in the clear when sued under an Illinois law prohibiting the collection of biometric date.

Google was said to be creating face templates for individuals who uploaded pictures to its cloud service. A judge ruled, though, that the Fourth Amendment does not recognize an expectation of privacy with respect to individual faces.

In the case, Lindabeth Rivera said her friend's Android uploaded her picture to Google's cloud service automatically, according to FindLaw. It then scanned her face and made a template.

"Plaintiffs do not offer evidence to dispute that their faces are public--just that their facial biometrics are," the judge wrote. "This is consistent with Fourth Amendment case law that rejects an expectation of privacy in a person's face."

It is estimated that nearly 90% of cybersecurity breaches are caused by human error, says Craig Petronella, an IT security expert and CEO of Petronella Technology Group, Inc.

Confidentiality is an essential element of practicing law. Attorneys are expected to maintain confidences with their clients, regardless of whether communications are made in writing, orally or in hieroglyphics. Therefore, securing client data stored electronically is mandatory so it can’t be hacked or otherwise obtained.

The problem is that even the tightest cybersecurity software is vulnerable to breaches. Why? Because it is human beings, with their imperfections or sometimes, nefarious goals, who oversee the implementation of cybersecurity programs.

“A lot of risk exists due to human’s mischievous actions or error," says attorney Tom Barnett, Special Counsel with the Los Angeles office of Paul Hastings LLP. "Even the most amazing, elaborate home security system fails if you leave the front door open.” Barnett is also Chief of the firm’s Data Science & Analysis Investigation department.

With that in mind, is there really anything a law firm can do to minimize the likelihood of a cybersecurity breach or hack, even when the most sophisticated cybersecurity protocols are implemented? “Getting humans to comply is essential. No program can overcome the human element,” he says.

Protecting Against Human Error or Malfeasance

While the human element makes any cybersecurity program vulnerable, there are still steps a law firm can take to minimize that threat.

Proper training is one weapon, says Barnett. “Training programs have gotten more sophisticated with actual testing to simulate real-life cybersecurity risks, so it is important to implement and refresh training.” A lack of training can cause people to forget how to respond to a cybersecurity threat or breach.

Petronella agrees that consistent training is essential. In fact, his company developed a solution by “blending training with 22 patented security lawyers together, so even if a human clicked on infected ransomware, malware or zero-day malware payload link by accident, the breach would be stopped in real time,” he says.

Consistent monitoring for compliance is essential, too. “Watch for nefarious actors,” Barnett urges. He also suggests law firms invest in software that deciphers red flags indicating a breach has occurred so it can be eradicated quickly.

Law firms should also be testing their systems at least monthly, and performing security risk assessments at least annually, says Petronella.

Brett Burney, an e-discovery consultant, author and principal with Burney Consultants, agrees that thorough and consistent training is essential to keeping electronic data safe. But, he says, lawyers and legal professionals can be their own worst enemies.

“Lawyers and legal professionals are averse to training. No one has time for training, and most of the training today is long, laborious and lackluster, which means no one is interested in attending, anyway,” says Burney.

Therefore, he says, there must be a systematic and consistent push for attorneys and their support staff to become more aware of the dangers of a cybersecurity attack, says Burney.

Lawyers tend to believe the biggest danger is some dark individual trying to hack into their computer by writing some nefarious coding scripts trying to ‘break in’ to their computers, says Burney. “That is an ignorant and irresponsible approach to how cyber-criminals operate today," Burney says. "The biggest threat really is someone inside a law firm receiving a phishing email with a malicious link that will either install malware on a computer, send credentials to a remote computer or encrypt all of the firm’s files in the form of ransomware,” Burney says.

Unfortunately, while there is no way to fully protect electronic data, the responsible route for lawyers to take is to “raise awareness at the firm to protect from most of these scenarios,” Burney says.

Tami Kamin Meyer is an Ohio attorney and writer.

Nearly every state in the union requires a unanimous jury verdict in cases regarding felony crime charges.

Until last year, only Oregon and Louisiana had merely near-unanimous thresholds, but the latter changed its state constitution to fall in line with the rest of the U.S. The changes, though, which take place Jan. 1, do not apply retroactively. As such, the changes are at the heart of the potentially game-changing Ramos v. Louisiana, according to the American Bar Association. (ABA) The ABA and the NAACP Legal Defense and Educational Fund, Inc. (LDF) were among some of the organizations to file amicus briefs in support of eradicating split-decision verdicts. The ABA went as far as to call for a declaration that the U.S. Constitution affirmatively require unanimous verdicts for felony cases in every state.

Per the ABA brief, it noted it has “long recognized that a requirement of jury unanimity in criminal cases is fundamental ...and is essential to maintaining public confidence in the criminal justice system.”

Louisiana, under the rules in effect until the New Year, called for jurors of 12 members to achieve consensus among 10 of them, according to the ABA. The brief was written in support of a man who was convicted of second-degree murder in 2016, but contends the 14th Amendment, which he says incorporates the Sixth Amendment, guarantees the right to a unanimous verdict. The ABA also noted that research shows that requiring unanimity “protects dissenting voices in the jury room because it requires that every point of view be considered.”

From Twitter:
Aliza Kaplan‏ @alizakap 
"Amazing team here in Oregon writing this amicus brief to SCOTUS in Ramos v. Louisiana, asking the Court to finally get rid of non-uanimous juries: https://www.supremecourt.gov/DocketPDF/18/18-5924/103324/20190618153604654_RamosAmicus.pdf … Thank you to all who worked on it and the Oregonian leaders that signed it!"

The LDF also submitted a brief, but took a different tact asking the Court to overturn Apocada v. Oregon, which ultimately allowed states the choice to allow non-unanimous jury verdicts. The fund contends rules permitting split-jury decisions are inherently racist, according to the organization.

“The drafters of the 1898 Louisiana Constitution had an expressly stated purpose in mind: to establish white supremacy,” said LDF/Fried Frank Fellow Kristen Johnson. “To accomplish this, they created a rule that jury verdicts in criminal trials need not be unanimous. This rule worked to silence Black jurors and over-convict Black defendants for over 100 years. Today we ask the Supreme Court to overturn its decision in Apodaca v. Oregon, which allows states to have non-unanimous jury verdicts.”

The LDF also reports that data from more than 199 recent verdicts shows the provision has a discriminatory, diluting effect on black jurors, who are more likely to be in dissent. Said the ABA of Apodaca: “The court, quite rightly, does not often overrule its precedents, but the status of Apodaca as a precedent, other than the bare outcome, is doubtful. In addition, extending well established Sixth Amendment case law to the states would cause little disruption.”

Arguments in Ramos v. Louisiana have yet to be scheduled. 

President Donald Trump is vacillating on policy proposals aimed at securing the southern border, and in recent days has fired off tweets ranging from criticism of Democrats in Congress to threats to close the border altogether.

The President has made securing the U.S.-Mexico border a priority agenda item during his campaign and presidency. He has been actively trying to secure funding for a border wall, although he has faced resistance. 

From Twitter:

Donald J. Trump‏Verified account @realDonaldTrump Apr 3

"Congress must get together and immediately eliminate the loopholes at the Border! If no action, Border, or large sections of Border, will close. This is a National Emergency!"

Donald J. Trump‏Verified account @realDonaldTrump Apr 2
"After many years (decades), Mexico is apprehending large numbers of people at their Southern Border, mostly from Guatemala, Honduras and El Salvador. They have ALL been taking U.S. money for years, and doing ABSOLUTELY NOTHING for us, just like the Democrats in Congress!"

On Thursday, the President tried a different tact, demanding Mexico take greater steps to secure the border, and called on them to reduce the amount of drugs and migrants coming to America.

An article from The Washington Post cited the President as threatening to levy tariffs against Mexico if action isn’t taken. "We’re going to give them a one-year warning, and if the drugs don’t stop or largely stop, we’re going to put tariffs on Mexico and products, particularly cars. . . . And if that doesn’t stop the drugs, we close the border," he said, according to the article.

Congress Responds with Condemning Resolution

Reps. Henry Cuellar and Veronica Escobar of Texas have introduced H.R. 287 (PDF) condemning Trump’s “recent threat” to close the southern border.

“Any potential closure of the border would cause extensive economic harm to U.S. markets and sever the bilateral trade relationship between the two countries. Every day, both the U.S. and Mexico work cooperatively to secure the shared border and facilitate the efficient flow of goods and tourism, while curtailing the illicit flow of drugs, people, arms, and cash at ports of entry,” according to a statement from Cuellar’s office. “These operations serve as the backbone of bilateral interconnectedness—closing down any one of the ports of entry, let alone the whole border, would have a myriad of unintended and irreparable economic, diplomatic, cultural, and humanitarian consequences.”

Cuellar said shutting down the border would be “disastrous” as the U.S. depends on Mexico for 60% of its produce, and the closure would hamper both the tourism industry and labor force. Escobar also took a shot at the President’s immigration policies, including the withholding of “economic aid.” 

“President Trump’s reckless behavior is a true national crisis. Shutting down the border will absolutely devastate our economy; continuing to withhold aid to Central America will only increase the number of refugees at our doorstep; and, the cruelty of his approach to asylum-seeking families in pursuit of the American Dream is a violation of human rights and only makes a challenge much worse,” said Escobar in a statement.

ABA Takes a Stand Against New Immigration Laws

In a separate immigration policy, Secretary of Homeland Security Kirstjen Nielsen has proposed changes to expedite the deportation of unaccompanied minors looking for asylum as well as detention policies for their families while proceedings are pending, according to information from The American Bar Association (ABA). The ABA has come out in strong opposition to these policies.

“Our nation places a high priority on the welfare of children, and the government should not undercut the rights of asylum-seeking children–particularly unaccompanied children–to consult with legal counsel and to be heard by an immigration judge,” reads a statement from the organization. “The ABA opposes the detention of immigrants and asylum-seekers except in cases of flight risk or danger to the community. The use of cost-effective and humane alternatives, such as family case management, has been effective to ensure families appear for their immigration court hearings.”

Nielsen also requested additional funding, resources and personnel to address humanitarian needs for asylum seekers and immigrants, which drew support from the legal trade group. “The American Bar Association has long supported efforts to hire more immigration judges and court staff to address the crippling backlog in our nation’s immigration courts. We also support greater resources for asylum offices and law enforcement, to provide a safe environment and fair proceedings for all asylum-seekers, particularly children,” the statement reads.

Reproductive rights have increasingly come into the national spotlight as states in every corner of the nation have recently begun to tinker with what’s considered permissible.

Most recently, the Supreme Court of the United States (SCOTUS) issued a 5-4 ruling blocking a Louisiana law that would have closed some of the few abortion clinics operating in the state.

According to the Center for Reproductive Rights, which challenged the law, physicians would have been prohibited from performing abortions if they lacked “admitting privileges” at area hospitals. However, the Center asked for an emergency request and stopped the law from taking effect just hours before it was set to commence.

“The Supreme Court has stepped in under the wire to protect the rights of Louisiana women,” says Nancy Northup, president and CEO of the Center for Reproductive Rights. “The three clinics left in Louisiana can stay open while we ask the Supreme Court to hear our case. This should be an easy case—all that’s needed is a straightforward application of the court’s own precedent.”

Justice Brett Kavanaugh, the newest addition to the court, penned a dissent.

In 2016, a similar law in Texas was declared unconstitutional. That case, Whole Woman’s Health v. Hellerstedt, was also prompted by the Center for Reproductive Rights. With respect to the Louisiana Law, the Center argued there is no need to require admitting privileges, as only 2 in 1,000 women require hospitalization due to major complications from an abortion.

SCOTUS found the law: “Provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so,” according to information from the Center.

New York Passes Law to Codify Reproductive Rights

New York’s newest abortion law, the Reproductive Health Act, was signed on January 22, the anniversary of the court’s ruling in Roe v. Wade. The bill’s signing even sparked a debate about throwing Gov. Andrew Cuomo, who championed the legislation, out of the Catholic Church.

A recent review of the law from factcheck.org addressed some of the controversy around the bill, as some see it as overstepping social and cultural mores by allowing “full term abortions.”

FactCheck presented the question and answer shortly after the bill was passed:

Q: Does the new New York law allow full-term abortions?

A: The law permits abortions after 24 weeks if a healthcare professional determines the health or life of the mother is at risk, or the fetus is not viable.

It added: “After 24 weeks, such decisions must be made with a determination that there is an ‘absence of fetal viability’ or that the procedure is ‘necessary to protect the patient’s life or health.’ That determination must be made by a ‘health care practitioner licensed, certified, or authorized’ under state law, ‘acting within his or her lawful scope of practice.’”

Planned Parenthood Takes Shot at Trump Nominees

The Senate Judiciary Committee advanced President Trump’s attorney general nominee, William Barr, along with federal judge nominees Matthew Kacsmaryk, Wendy Vitter, Brian Buescher, and Michael Truncale, each with “extreme anti-abortion and reproductive health records,” according to information form Planned Parenthood.

Dana Singiser, Senior Vice President for Policy, Campaigns and Advocacy, Planned Parenthood Federation of America, issued a statement in response: “Everything is on the line for women’s health and rights with Trump’s latest slate of nominees with extreme anti-abortion and anti-reproductive health records. Republicans on the Senate Judiciary Committee know that Barr believes Roe v. Wade should be overturned and is a threat to the Affordable Care Act, yet they choose to vote him out of committee regardless.”

Of the judges, Singiser added: “Trump’s nomination of Wendy Vitter, Matthew Kacsmaryk, Michael Truncale and Brian Buescher for lifetime seats on our federal courts is just the latest step in a broader effort to ban access to safe, legal abortion. Nearly one in five judges in lifetime federal seats are now Trump appointees--and they will be ruling against our health and rights long after the Trump presidency is over.”

The deadly mass shooting in Las Vegas, which left 58 concertgoers dead, and saw about 500 injured, has lead to a litany of legislative proposals aimed at preventing similar incidences.  

Advocates, voters, gun-owners and government officials each offered takes on how to address systemic mass violence, sparking yet another round of debate on the Constitution’s Second Amendment. While the many thoughts and prayers offered by lawmakers traversed party lines, actual bill proposals and policy solutions varied wildly, ranging from changing liability law to tightening regulations and even fully repealing the Second Amendment.  

A number of bills targeted at what some Senators are calling gun regulation “loopholes” were introduced in the wake of the shooting, including one from U.S. Sens. Richard Blumenthal (D-CT), Chris Murphy (D-CT) and Dianne Feinstein (D-CA), according to Murphy’s office. The trio introduced legislation to prohibit gun sales from being completed when background checks take longer than 72 hours.    

“This is [a] dangerous loophole that could allow criminals and those with mental illness to complete their purchase of firearms even though it would be unlawful for them to possess them,” Feinstein says. The Senators said this “gap” in the law helped Dylann Roof execute his attack on the Emanuel AME Church in Charleston, South Carolina last year.  

“Waiting for a background check, even if longer than 72 hours, is a minor inconvenience far outweighed by the benefit of keeping lethal weapons out of the hands of dangerous people,” said Blumenthal. The trio also teamed up to introduce the Automatic Gun Fire Prevention Act, which they say would prohibit bump fire stock modifications that allows semi-automatic weapons to fire at the same rate as fully-automatic weapons.    

“Bump fire stocks skirt the law to effectively make a semi-automatic weapon mimic an illegal fully automatic weapon–that’s literally the only reason it exists,” said Murphy. “ … Automatic weapons are outlawed for a reason, and the horror in Las Vegas made clear why. Congress needs to pass this bill ASAP or we will see them seized by even more mass murderers and terrorists.”   

The National Rifle Association, ardent supporters of the rights of gun owners, similarly released a statement advocating the review of certain devices used to modify firearms. “The NRA believes that devices designed to allow semi-automatic rifles to function like fully-automatic rifles should be subject to additional regulations,” said the NRA’s Wayne LaPierre and Chris Cox in a joint statement.

The advocacy group, though, rejected the notion that reducing gun ownership outright would help make Americans safer. Citing an “increasingly dangerous world,” the NRA’s statement called for the “strengthening” of Second Amendment freedoms. “To that end, on behalf of our five million members across the country, we urge Congress to pass National Right-to-Carry reciprocity, which will allow law-abiding Americans to defend themselves and their families from acts of violence."  

That reciprocity would require states to recognize permits granted in other states. Earlier this year, Rep. Richard Hudson (NC-08), introduced a bill to allow interstate gun owners the ability to carry their weapons with them from state to state. “Our Second Amendment right doesn’t disappear when we cross state lines, and this legislation guarantees that,” Hudson said. “The Concealed Carry Reciprocity Act of 2017 is a common sense solution to a problem too many Americans face.”