Law And More

Edelman's "Geopolitical Business" Trust Barometer - Paul Weiss Chairperson Brad Karp Called It in March 2020

The purpose-driven business – that is, going beyond Milton Friedman's doctrine of maximizing shareholder value - is not a fad. And it’s not restricted to the US. Public relations powerhouse Edelman conjured up a special version of its annual Trust Barometer. That’s its "Geopolitical Business" one, which you can read here.

The data has been derived by interviewing 14,000 in 14 nations during April and May 2022. The finding is unambiguous:

77% on average believe that improving societal issues is a primary business function.

That reality has introduced new risks for business. For instance, trust in the enterprise is directly at stake. Edelman provides the concrete example of doing business with Russia. Those which continued with that experienced a 38% falloff in trust. Those who halted relationships gained a 31% uptick in trust.

So, Edelman confirms what has been the undertow in business leadership and management since the term “ESG” (Environmental Social Governance) had been coined in 2005.

First in slo-mo then more rapidly that force had all the makings of developing into a tsunami. Business values as we have known them would be swept away. Currently palpable among global and US corporate leaders is intense angst about “Becoming the Next Disney.” Here is The Washington Post’s analysis of some of Disney’s ESG-generated woes.

In Spring 2020, law firm Paul Weiss observed what might be described at The Overwhelm. That’s because ESG principles impact every organizational function. Yes, constituencies, ranging from employees/shareholders to communities/media, are co-creating the new purpose of business. 

Amid the escalating disruption, Paul Weiss chairperson Brad Karp launched the first-ever in the legal sector Sustainability – Environmental Social Governance (ESG) practice. His edge in formulating that has its roots in both his own social-justice initiatives and the legacy of the law firm in calling out and addressing wrongs in society. 

The Paul Weiss ESG practice mission has been to help

“… companies navigate the legal, business and political ramifications of development and implementing EGS initiatives. We advise on matters such as stakeholder engagement, corporate governance, crisis management, corporate social responsibility, sustainability, diversity and inclusion, ethics and compliance.”

Overlaid on ESG is the investment piece. That’s big and getting bigger. According to Bloomberg Intelligence the value of Sustainable or ESG investments can exceed $41 trillion by the end of this year and $50 trillion by 2025. If public companies want to continue to attract investment they have to integrate ESG principles.

Obviously, that is creating new risks. In a January 2022 analysis in Corporate Counsel zeroing in on where ESG is currently, Karp, along with Paul Weiss’ Chief Sustainability Officer David Curran, reports:

“… companies are increasingly held accountable by the public and shareholders for ESG performance. The number of successful ESG campaigns [such as proxy battles] increased … buoyed by support from large institutional investors and advisory firms such as Institutional Shareholder Services (ISS) and Glass Lewis.”

A lousy grade on ESG performance can trigger not only a drop in the stock price. In addition, the public company could become an acquisition target. Independence is in play.

It’s not hyperbolic to assert that all business issues have become ESG ones. There is no bypassing that. As the Edelman research screams out: Businesses which are assessed as doing the right thing are trusted. Those ignoring those values could be negatively impacted in every aspect of their operations.

The rub: What are the “right values?” The consensus keeps fragmenting.

Connect with Editor-in-Chief Jane Genova at janegenova374@gmail.com. She is a corporate writer and had done assignments for Edelman. Now and then she does freelance communications work for law firms such as Paul Weiss.

 

Kirkland & Ellis, et al. - Will Representing NRA and Other FIrearms Clients Make Them "Another Boies Schiller?"

As part of the NRA annual meeting in Houston, Texas, is a day-long legal seminar for lawyers associated with or who want to be associated with Second Amendment issues.

One presenter, reports Reuters Legal, has pulled out, without explanation. That's Kirkland & Ellis partner Kasdin Mitchell.

K&E has represented clients with firearms matters, including the NRA. One of its partners Paul Clement had argued before the US Supreme Court "New York State Rifle and Pistol Association v. Bruen."

As Law and More explains, that is about the right to carry a concealed weapon in NY state. The High Court has not yet issued its ruling. But few expect that to be delayed because of the mass murder in Uvalde. If there is a delay it will probably be to give time for the justices to insert a reference about Uvalde.

The reality that legal powerhouse K&E will not be participating in the NRA firearms seminar obviously raises this question: How much can defending clients with firearms legal matters impact reputational issues for law firms? That leads into the next question: How much could that hurt business?

It is impossible not to recall how Boies Schiller's representation of Harvey Weinstein threw the brand into chaos. The tipping point, of course, had been The New Yorker expose on how Boies Schiller was going about the defense. Next there was an outcry about how Boies Schiller co-founder David Boies was also representing startup Theranos. There may or may not be a correlation between those branding upheavals and the partner flight, along with the decline in revenue. Law and More covered how three more "stars" had left Boies Schiller.

The hits K&E and other law firms could take depend on the reach and influence of outrage about mass shootings. As Bloomberg Law documents, in 2022 alone there have been 213 of them. "Mass shooting" is defined as four or more injured or killed during such an incident. 

It is telling that K&E will not have an active role in the NRA legal seminar. It will also be interesting to follow the media reports on what lawyers do turn up at the seminar. In fact, that in itself could become a major media story in covering the NRA annual meeting.  Will the progressive media position and package the lawyers' entrance to the seminar as a kind of Walk of Shame? 

On the other hand, those with power might not be able to move the dial enough on outrage about Uvalde. Or, more to the point, not want to do that, not at all. Firearms are big business. The guns and ammo manufacturing industry in the US, IBIS documents, has a current market size of $19.5 billion.

Connect with Editor-in-Chief Jane Genova at janegenova374@gmail.com.

Two Years After George Floyd's Death, Paul Weiss Partner Ted Wells Jr. Reflects in Forbes

"I was born in 1950 and came of age during the civil rights movement. If somebody had told me at 18 that we would still be fighting in 2022 with such intensity about violence against Black men and women, I’m not sure I would have believed it." - Ted Wells Jr. in Forbes, May 23, 2022.

For the second anniversary of the death of the George Floyd, Forbes featured a collection of reflections by Black leaders on change. Wells' are poignant.

In his youth, the George Floyd moment had been the lynching of 14-year-old Emmett Till. At the time, Wells was a little boy but obviously it resonated with him. Till's alleged crime had been whistling at a white women. Those responsible for the lynching had been acquitted by an all-white jury.

In contrast, there have been legal consequences for the members of law enforcement involved directly or indirectly in Floyd's death. However, Wells notes the racially-associated carnage in Buffalo, New York, on May 14th. During the massacre 10 lives were lost.

One day after the Forbes special had been published there was the mass shooting in the Uvalde, Texas school. 19 children and two adults died. It may or may not have been associated with Hispanic issues. 

As for violence in itself, as Bloomberg Law reports, there have been 213 mass shootings in 2022. They are defined as when four or more are injured or killed.

As an optimist, Wells hopes that outrage will lead to change. 

At Paul Weiss, Wells is a partner and the co-chair of the litigation department. In addition, he had been chairman emeritus of the NAACP Legal Defense and Educational Fund.

Paul Weiss, chaired by Brad Karp, is known for its legacy of pushing the envelope on social justice. As a pro-bono initiative recently Paul Weiss won a significant voting rights victory in the North Carolina Voter ID litigation. In a Pivot Podcast, hosted by Kara Swisher and Scott Galloway, Yale Management School guest Jeffrey Sonnenfeld saluted Karp as a "change agent" in  social justice matters.

Since I am a boomer like Wells, I also vividly recall the beginnings of the civil rights movement. For me the "moment" had been the slayings in Mississippi of the Civil Rights workers Michael Schwerner, Andrew Goodman, and James Chaney by the Ku Klux Khan. The three were there to try to register Black voters. The outrage mobilized many of us boomers to become active in the movement. I published articles. I produced a play. I fundraised. I engaged in peaceful protest.  At the time I was fired up with hope. Currently, I am not.

Connect with Editor-in-Chief Jane Genova at janegenova374@gmail.com. Now and then she does freelance assignments for law firms such as Paul Weiss and their vendors.

Howdy Partner, Likely You're White & Male (Source: 2021 ABA Model Diversity Survey)

Given how the "Free Market" system (and politics) of how most law firms operate, the findings of the 2021 ABA Model Diversity Survey are no surprise.

Here are the key ones which pertain to all sizes of law firms in all geographic locations:

• White lawyers were almost twice as likely to make partner than non-whites.
• Males lawyers were twice as likely to make partner than women. Women constitute 25.1% of partnerships, up from 24.2% the year before.
• Black attorneys constitute 2% of partners.

One factor which might play a significant role in this reality is what is known as the "Free Market System." In that, partners have the decision-making power to assign work to associates. That has profound implications for associates. Those include:

• Ability to generate billable hours
• Availability of learning experiences. Those are critical to professional development. Law is a hands-on line of work. One learns by doing. 
• Access to the kinds of assignments which create visibility and contacts within the firm, on external networks, and in the media. 
• Being on the types of accounts which are considered seminal in creating revenue/profit, maintaining a lucrative account, and developing new business. Not all client work is created equal. And not all put associates on the partner path.

Partners, like all the rest of us, are human. Amid such a stressful/deadline-driven profession they could find it "easy" to make assignments to those they feel comfortable with. That entails the ability to "size up" what those associates are all about. They may not conclude that they can "read" associates from outside their traditional professional and social networks. So, they stick with the known entities.

In subcontracting work for my communications boutique I also select those whom I conclude I "know." I don't welcome surprises in attitude or behavior. As an entrepreneur I deal with too much pressure. 

This is a hard nut to crack.

The Mansfield Rule, created by the Diversity Lab, specifies that in promotion decisions law firms will consider in the pool 30% diverse candidates. Some firms have adopted that rule.

But the human factor probably still dominates. Navigating outside one's comfort zone involves risk. With so much uncertainty professionals are not very open to taking on more of that.

Connect with Editor-in-Chief Jane Genova at janegenova374@gmail.com.

Trump's Power - Everyone Is Measuring It

"President Trump and the MAGA movement are showing signs of moving in different directions. By no stretch of the imagination is Trump’s base deserting him. But nor are those voters willing to simply do his bidding." - Niall Stanage, The Hill, May 23, 2022

The focus has long shifted from the real or alleged perils presented by Donald Trump to how much power does he still have. The answer is two-fold:  (1) He still has more power than his critics anticipated and (2) He is losing the ability to unilaterally control the MAGA movement.

That leaves progressives in an urgent state of coming up with strategies to create their own kinds of power. In that the Democratic Party seems to have defaulted to New York City Mayor Eric Adams. As Politico reported, he is the new messaging machine. 

At the Democratic Congressional Committee he advocated applying his own motto: Get Stuff Done. Yes, take action. He also was bullish on storytelling. Part of that was forcing the GOP to come to terms with their own conflicting stories. Yes, they are for law and order but they back off from adequate funding of law enforcement. 

The buzz is that Adams could put himself out there for US President in 2024. What operates against that is the escalating troubles in his own city. Violence is the dominant ethos. In addition, COVID has returned. Meanwhile, remote work has sent the commercial real estate industry reeling. 

Trump has established almost a mystical force field for his points of view. Traditional politicos don't know how to neutralize it.

Connect with Editor-in-Chief Jane Genova at janegenova374@gmail.com.

 

Amber Heard and Other "Imperfect" Victims of Alleged Domestic Abuse - #MeToo In-Play

"#MeToo is over if we don't listen to 'imperfect' [alleged] victims like Amber Heard." - Martha Gill, The Guardian, May 22, 2022.

#MeToo had caught fire. We all know that.

The high-profile females who contended they have been "victims" of sexual misconduct were, well, not imperfect.

As they presented their complaints there was no "evidence" that they might have collaborated in what they alleged had happened to them. In addition, they were what we think of as "solid citizens." No, they didn't have to be Saints. Some who had become caught in the alleged sexual abuse by power brokers in media had been quite ambitious. Society remains ambivalent about that trait in females. 

So much for the victims who met the specs for the acceptable victim.

Then came along Amber Heard. Some fear her streaming presence could make #MeToo go poof. In a 2018 The Washington Post op-ed she contended she had been a survivor of domestic abuse. In that piece she didn't mention her former husband Johnny Depp by name.

Nevertheless, he filed a $50 million defamation lawsuit. The result is one of those Trials of the Century which will wrap this week. It's sucking up so much media oxygen. 

Well, Heard is not a solid citizen type. She is been labeled the "imperfect victim."

For example, she said she would donate all her divorce proceeds to charity. That didn't happen.

There is also a recording of her hitting Depp. 

In addition, the skilled lawyers representing Depp from Brown Rudnick are knocking the stuffing out of her on cross-examination as well as through objections. That's so much the situation the BR lawyer Camille Vasquez, although not a partner but an associate, has become a TikTok star.

However, what Gill and others are pushing back with is this: #MeToo was intended to give voice to imperfect victims. They didn't have to fit the traditional stereotype of the Good Girl. 

However movements are fragile. Remember the late 1960s and early 1970s Counterculture? That too caught fire. The severe recession of the mid 1970s essentially ended that Do Your Own Thing ethos. We got it that we had to do what The Man demanded. Some of us even felt that our Counterculture selves had represented excess. 

#MeToo also could be what a society leaves behind. 

Connect with Editor-in-Chief Jane Genova at janegenova374@gmail.com.

 

If the Market Sours - Remote Lawyers & The Free Market System

Today on Bloomberg Law Roy Strom reflects on the possible vulnerability of remote lawyers in a down market in the legal sector.

Unlike the current hybrids who did a partial return to the office they continue to operate totally WFH. Should demand cave they might miss out on being assigned any work (and be laid off, stealth or RIF) or interesting work (and take a lateral if that option still exists if demand falls off a cliff).

Strom focuses on the "free market system" of assigning work. Law firms put that decision in the hands of the partner. Since remote lawyers aren't "there" in the office they could have less of a shot at making out in that free market system.

Of course, lawyers, as well as myriad other professionals, have been warned that remote can be a peril to both upward mobility and job security. Should a downturn hit the legal sector, then we will find out if that beware had been on the money.

Meanwhile, in this upside-down global and US economy many professionals in other fields are feeling undone.

Connect with Editor-in-Chief Jane Genova at janegenova374@gmail.com.

Cities and Greatness - Paul Weiss Looks At What's in It for Employers in the NYC Amended Salary Disclosure Law

What major US city isn't in-play? Insider warns that the newly built greatness of Miami, especially in tech, could go poof. Meanwhile, as everyone has known for a while, the cities of Silicon Valley have experienced more moving vans heading out than coming in. There's a brain drain. As for New York City, the situation is iffy. But, an encouraging sign is that government has been receptive to what businesses need. That has included their beefs about the NYC Salary Disclosure Law. Here is that snippet of hope. Wall Street law firm Paul Weiss provides the details. 

AN INNOVATION OF SORTS (but not in the eyes of employers)

On May 12, 2022, New York City Mayor Eric Adams had signed into law the Salary Disclosure Law. It goes by myriad other titles such as the “Amended Transparency Salary Law.

Essentially it makes NYC the second jurisdiction – Colorado has been the first – to require employers to post minimum/maximum data for position postings. But there had been significant modifications before it gelled into the bill which became the current law.

THE PUSH-BACK FROM BUSINESS

From the get-go, employers weren't happy. Also they were confused.

In its Client Memorandum law firm Paul Weiss gives the highlights of that conflict.

Here is the law’s original form, here is the amended version and here is the cheat sheet from the NYC Commission on Human Rights (NYCHR) which enforces the law.

Paul Weiss cuts to the chase. The original law, which had been passed on January 15, 2022, set off criticism from both certain business groups as well as government officials. That included the observation that some provisions wouldn’t be effective for achieving gender and racial parity. Also most of those affected claimed they had no knowledge of the legislation. In addition, there were ambiguities. The result was that on April 28, 2022, an amended bill addressing the complaints was introduced.

PAUL WEISS SPELLS OUT THE 4 CHANGES MOST USEFUL FOR EMPLOYERS

But the key parts of the Paul Weiss Memorandum hammer how the amended version is useful for employers in 4 specific ways. They are:

More time provided for compliance. The original date had been May 15, 2022. The new one is November 1, 2022. Paul Weiss recommends:

• Using that time to come into compliance with the changes, including educating managers, human resources, and legal/compliance departments.

• Reviewing templates for existing postings for jobs, promotions, and transfers. If necessary, developing new ones to align with the provisions of the amendments.

• Monitoring the roll-out of the law in order to be aware of any updates and additional guidance.

Clarifies ambiguities. Those include:

• “Salary” disclosure requirement covers not only salaried but also hourly jobs, promotions, and transfers.

• It is an unlawful discriminatory practice for an employer or an employment agency “to advertise a job, promotion or transfer opportunity without stating the minimum and maximum annual salary or hourly wage for such position in such advertisement.”

• Law doesn’t apply to positions that can’t or won’t be performed, at least in part, in NYC. That ensures that jobs performed virtually in NYC or for NYC employers are all covered. However, during the implementation of the law the NYCHR might make additional determinations about which jobs are covered even if employers do not maintain facilities in NYC.

• All Employers with four or more employees must comply.

Narrowed scope of who can bring cause of action.

An applicant for a job can’t take action under the law. The applicant who had not been hired might have filed a complaint. That is now explicitly banned. Only a current employee can do that against the employer for an alleged violation.

Hold-off of penalty, time for course-correction.

Yes, the NYCHR accepts and investigates complaints about alleged violations. In addition, its Law Enforcement Bureau can launch its own investigations.  Also, individuals with a complaint can also file a lawsuit in civil court.

However, the amendment specifies there will not be a civil penalty for employers for the first alleged violation. Instead, there will be a 30-day window after being notified for the employer to correct the situation. If there isn’t course correction within that timeframe, the civil penalty could be up to $250,000.

EMPLOYERS COULD POSITION SALARY DISCLOSURE LAW AS STEP IN REIMAGINING MANAGEMENT/LABOR CONTRACT

Great cities got that way throught the vision of their founders and the collective creative energy of their residents. NYC employers can re-create that force field by standing proud about the pioneering Amended Salary Disclosure Law. Hey, it can signal to the world, we care about talent. That's why we are among the first to be transparent about salary. 

Connect with Editor-in-Chief Jane Genova at janegenova374@gmail.com. Now and then she does freelance assignments for law firms such as Paul Weiss and for their vendors. 

Work: Clash of theTwo Cultures of Either Being Always-On or Seeking Life Balance

"Goldman Sachs Group Inc.’s move to offer senior bankers unlimited time off seemingly marks a step toward a softer side of Wall Street. But there’s policy, and then there’s practice." - Bloomberg, May 17, 2022.

In practice, as Bloomberg points out (and as we striving professionals always knew) accessing more leisure time primarily depends on two factors:

One, how the leadership and other decision-makers (such as one's immediate boss) perceive going off-duty.

And, two, how we ourselves calculate the risk of not being all-on, all-of-the-time. Yes, there are professional niches in which work is done 24/7. Think of that M&A transactional work or the case in court going badly for law firms. 

In a sense the world of work is bifurcated into two cultures. There is the ethos in which what is referred to workaholism is the norm. It's expected. There is also the ethos in which management and labor strive to create a balance between what the job demands and what can be available in a personal life.

Of course, this is not new.

When I took my first full-time corporate job at a major oil producer it was during an energy crisis. In the court of public opinion the oil industry was being blamed for "holding back" supply to raise prices. We in corporate communications labored 14 hours a day, seven days a week. That was expected. It was implicit.

Post-crisis, it was also implicit that those who wanted to "get ahead" would continue with being in the office for long hours, including weekends. Of course, not everyone made that choice. Their careers peaked prematurely but most had priorities other than work. Those ranged from family life to volunteerism. 

What is new is that the two cultures are colliding in some circles. Workaholism is being questioned - and attacked. Balance is being revered.

A high profile lawsuit is about parental leave for fathers: "Mark Savignac, et al. v Jones Day, et al." It's sticky because of the demand by some fathers that they have the time-off-the-job to bond with and participate in the lives of their chidren. Although the plaintiffs had a recent setback, the litigation is still moving forward.

Yes, like Savignac and his wife Julia Sheketoff, we can take on the role of change-agent in how much work is expected in high-powered jobs or client assignments. Or, we can make a choice about what culture we will embrace and accept both the rewards and tradeoffs. 

In doing assignments for law firms, I know that I have to be all-on. Both their transactional and litigation tasks involve deadlines. So do their interactions with media. If I'm not there some other vendor will make it clear he or she will be. 

Yes, there is choice. The challenge is knowing who we are so that we can assess where we can fit and not come undone. That unraveling could be from frustration with all the hours demanded or from the loss of mobility and/or earning power because we have opted for balance.

Connect with Editor-in-Chief Jane Genova at janegenova374@gmail.com. She does communications assignments for law firms, defense and plaintiff and the enterprises serving them. Please contact for complimentary consultation. No selling.

 

Followers, Page Views, Likes, Comments, Shares - Even C-Span Has to Play the Social Media Game

C-Span is becoming like the rest of us: Hyper-tethered to the ongoing metrics of social media. Politico reports how it is re-thinking much of how it presents content to boost those metrics. 

Some of the pressure has come as a result of cord-cutting. Revenue from cable is less. In addition, in this attention economy C-Span has to keep figuring out how to get, hold onto, and grow the number of eyeballs. What attracts those eyeballs to C-Span is essentially the same of what attracts eyeballs to social networks such as Twitter.

What we can say to the leaders and management at C-Span is: Welcome to the game. It's one of escalating competition. Always there is a fresh presence which sucks up so much of the social media oxygen. If that occurs in one of our niches that could mean our metrics take a hit. If that happens not only can our business be affected negatively. Our confidence can also go south. 

Keeping out numbers up has been added to the must-dos for success. Yes, I check them too often. I also check how my colleagues are making out. I worry about any dip (which is usually temporary) too much. And I rejoice too wildly about a surge. 

There's no ambiguity. For professionals, not only teens, social media impacts our mental health. That's the way it is. Unlikely that will change.

Connect with Editor-in-Chief Jane Genova at janegenova374@gmail.com.