Law And More

Jones Day - Lack of Transparency in the Service of Collegiality

Gender discrimination lawsuit "Tolton, et al. v. Jones Day" has seemed to get under the skin of that elite law firm.

Yes, Jones Day is the defendant and it has been reacting.

Here is the latest in the myriad media articles about how this usually secretive firm has come out swinging. In very public ways.

This Law.com coverage is of Jones Day's filing in U.S. District Court of D.C. of sanctions against the law firm representing the plaintiffs - that is, Sanford Heisler Sharp.  Essentially, SHS is the go-to firm for employment-related complaints by workers. Here is a copy of that January 24, 2020 filing by Jones Day.

The odd-for-Jones Day behavior started when it posted a response to the lawsuit on its own website. That was April 2019. Here it is. And, here is a copy of the amended "Tolton" lawsuit, filed in June 2019.

The amazing development in Jones Day's outreach about "Tolton" is that in the most recent filing it defends its iconic black box culture, particularly its confidential compensation system.

In the filing, Jones Day explicitly says:

"When compensation is individualized and merit-based, confidentiality helps to promote collegiality ..."

By "individualized," it means it doesn't follow the lockstep pattern some other law firms practice.

Such collegiality, Jones Day contends, prevents the ego, arrogance, and resentment from interfering with rendering the best in client service.

However, that pits the supposed benefits of confidentiality against what might be generated by transparency. 

Law is no longer a genteel profession. It is a business.

In all forms of business, transparency is being increasingly demanded. Constituencies, ranging from employees and clients to government regulators and third-party payers such as insurance companies want to, need to know what is going on. 

That's especially the situation in the supposedly selfless helping professions. That's what I argue for in this article about transparency in the practice of psychotherapy.

What are insurance companies and the clients who pony up the co-pay funding? Is the methodology off? Is the fit in the therapist-client relationship off? I had to hire a lawyer to obtain the clinical records of my treatment wtih therapist David W. Harder. After I reviewed them I perceived, no, the two of us had never been on the same page.

Controversy, some public relations representatives assert, is all good. 

Maybe. It could have a positive outcome if managed brilliantly.

However, the controversy over "Tolton" doesn't seem to be managed appropriately by Jones Day. Can its branding become tarnished?

This is amazing material for a case study on crisis communications. The crisis here, as I read it, is that it would be a catastrophe on many levels for "Tolton" to make it to court. The black box would be pried wide open.

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The Former Lawyers in the U.S. Senate Should Have Known Better

The ABC Evening News with David Muir dominates the category.

That's because those behind and in front the camera know how to conjure up drama.  Yes, all the world's a stage. 

Those in the U.S. Senate lack that theatrical know-how. Yet, as the New York Post reports, the Senators are baffled that the Senate spectator gallery is half empty.

Their back offices, which should be filled with public relations types, can't put together what should have been the Greatest Show on Earth for 2020.

That is weird since many of the Senators have a lawyering background. Lawyers are socialized to put on show, be it in the courtroom or across the negotiation table.

 Here are 4 tips to reverse this failure to engage.

Create mystery. Everyone anticipates an acquittal. To derail that mindset senators should posture voting for conviction. A wonderful side benefit of that is that they will receive lots of coverage in the media. The media is the most powerful institution in the world. 

Stop being so repetitive. The American people feel reduced to being a child whose adults in the loop continue to nag about the same things. Even in search engine optimization (SEO), Google is punishing posters who get stuck in one message phrased in an infinite number of ways. 

Raise the Emotional Intelligence (EI) double-digit points. The ugliness of extreme polarization is turning people off. Ranging from Dale Carnegie to Dan Goleman, those smart about how to win friends and influence people hammer the importance of being tolerant, respectful, and willing to listen. Actually that dates back to St. Francis of Assissi who preached the value of struggling to understand rather than being understood. Here is his iconic prayer. 

Render public service back home. The impeachment trial is typical inside the beltway, that is, looking inward. Break that spell by reaching out back in the home state and do good. Are the supplies for the food pantry running low? Organize an initiative to solicit and collect food from local restaurants and grocers. Part of the popularity of the ABC version of the news is the "American Strong" snippet at the end of the broadcast. It melts our hearts. Yes, 21st century humans still have hearts. 

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Displaced Lawyer Transitioning to Communications Career Path - Hits The Wall of The Audition (Passport Admissions)

For a high-profile, decent-paying full-time job with benefits, sure, go through the audition.

That's what Harvard Law School graduate Elie Mytal did in 2008.

He landed a position in the then-hot, getting hotter all the time digital native legal news platform Abovethelaw. There he rose to editor-in-chief. Along the way he became a media star. Recently he transitioned to another career path. 

And, then there are the kinds of work situations offered by Passport Admissions. Based in San Diego, it assists with the academic admissions process.

On the San Diego section of Craigslist, it had posted a help-wanted. The structure was a contract gig. The task: editing student personal essays. The pay $20 to $25 an hour. Here is that ad. Oh, there was a cute promise: Those accepted for assignments would have their photo featured on Passport Admissions website.

Well the audition consists of:

• Yes, the usual cover letter and resume.
• Replying thoughtfully to a series of questions. They range from how to manage hypothetical situations to what is a perfect day like for the gig applicant.
• A 30-minute exercise to evaluate two student essays. That must be done on Google Docs. No simple Tracking on Word.
• A 5-minute exercise to correct the grammar, spelling, and punctuation of the front end of one of the essays.

 A displaced lawyer I coach who wants to transition to communications flagged me about this ad. Should he do the audition for what he described as an "opportunity" which paid "peanuts?" His gut screamed nonono.

I navigated to the ad. On the plus side, Passport Admissions did indicate there would be an audition.

Many other employers are guilty of a failure to warn. The applicants have already invested a hour or so in the process and then discover they will have to, for example, research a series of questions and then write a well-organized answer for each.

To help my client with his decision, I parachuted in and began the audition myself. I wanted to determine how time-consuming it would be. Too time-consuming, I concluded. After step two, I stopped. I had already invested plenty of time. My advice to him was: Choose your shots. This one, at least to me, isn't worth taking. 

Globally, capitalism has become controversial. Harvard Business School has an elective about Reimagining capitalism. This kind of required audition for a relatively low-paying gig seems to require a comprehensive reimagining.

My heart breaks for those who feel they have no choice but to comply with the audition for assignments which pay peanuts. In the American style of capitalism, 60% don't have $1,000 to pony up for an emergency. 

Coaching, lecturing, and writing/ghostwriting thought leadership content on human resources and careers.  

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"Paul Dicesare v. Matthew Horn, Revel Transit" - E-Motor Scooter Industry on Trial

Last July, a New York City bicyclist filed a lawsuit in New York State Supreme Court against a man riding an electric moped (e-motor scooter) and the company renting out that vehicle.

Soon enough, the whole e-motor scooter industry has been put on trial - in the media, among safety activists, and seemingly even dealers who sell those vehicles.

The lawsuit is "Paul Discesare v. Matthew Horn and Revel Transit." Here is a copy of the complaint. The implications are amazing.

As StreetsBlogNYC reports, in June, the plaintiff and the defendant were both attempting to make a left turn from York Street onto Gold. Dicesare contends Matthew Horn, who was on a moped leased from Revel, hit him from behind, injuring him. The police report provides different details. 

Dicesare contends that Revel leases for a $19 fee the e-mopeds but does not require hands-on, in-person training. Yet, the vehicle can travel up to 30 miles an hour and the rider has to navigate the crowded streets of New York City. The terms and conditions of the leasing only mandate a valid driver's license with a clean record. Revel provides $50,000 in liability coverage. 

To participate in this vehicle-sharing program, it's necessary to download the Revel app, which is here. The program also is available in Austin, Texas, Oakland, California, and Washington D.C. According to CrunchBase, "Revel Transit is an shared electric vehicle service that allows users to locate, reserve, and unlock through an app." The company was founded in 2018 and is based in Brooklyn. 

Yesterday, the influential tabloid the New York Post covered this emerging legal niche. Since Dicesare, who is represented by lawyer Daniel Flanzig, filed his lawsuit there have been six more against Revel.

However, the controversy over this sharing app may be just the tip of the iceberg about the safety of e-motor scooters, the legal liability associated with them, and other approaches to what might be thought of as "green travel."

Here is my story, for instance. Recently, I went to a dealer in Toledo, Ohio which sells powersports vehicles, including mopeds. Because I hadn't ridden a moped since graduate school I asked if I could try one out. The owner refused because of liability.

Before my visit to Tucson, Arizona, I called a motorcycle dealer about my test driving one of their e-mopeds. The answer was "no," unless I had been riding one regularly already.

Meanwhile, green activists are advocating alternate modes of transportation to replace the gasoline-powered car. Along with bicycles, of course, are the e-motor scooters.

The growing number of food couriers find the e-moped less expensive than maintaining a car and is faster than a conventional bike.

Another option for them is the e-bike. At least, outside NY state.

Last December, governor Andrew Cuomo vetoed the bill legalizing those e-bikes, along with e-scooters. He cited safety reasons. Here are more details from the New York Post.

E-transport everything, including the green movement, can be damaged by the litigation as well as Cuomo's veto. Along the way, my enthusiasm about green travel has been replaced with fear. Here in OH, e-bikes are legal. But I now wonder how safe I will be navigating traffic. If I conjure up the courage to test out an e-moped, the place I could go would be an official Harley Davidson dealership. It also provides riding lessons.

In my 20s, I had taught myself how to ride a Honda 90 cc. That was in a vacant lot near the boarding house for doctoral students. I went everywhere, without any accident. 

But that was then. Roads in a university town were sharable by multiple types of vehicles and I had the fearlessness of youth. 

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M&A Like Duane Morris + Satterlee Stephens v. Boutique - Acid Test Could Be Downturn

An increasingly popular scaling strategy in myriad sectors is M&A. Often, of course, it's also embraced for survival.

In the law-firm industry, the driver for M&A is not only scaling. Also, there is client demand. Those have experienced their needs outgrowing the scope of their law firm.

All eyes are now on the merger of Philadelphia based Duane Morris and New York City's Satterlee Stephens. Here are more details from Law.com.

What Duane Morris, the larger firm, gets in the deal includes a broadened geographic footprint, increased presence in tech, life sciences, and financial services, and adding brandname clients such as JPMorganChase.

In addition, what discourages lateral moves is for top lawyers to be able to be big fish in a big pond. They could defect if they are not associated with a major premium brand in the practice of law. In itself that positioning as a big player in a large elite sandbox could assist with new business development.

Satterlee, like many midsized firms, could be squeezed out if it remains a standalone in mid market. Also, that category of firm is receiving complaints from clients about requiring more types of services.

In contrast to scaling is the boutique movement. That configuration provides niche services, usually at a fee level lower than that of the traditional full-service large law firm. The lawyers can develop brands as specialists in narrow areas of law. Many services done in-house in BigLaw are outsourced. 

Most recently, partners exiting from Boies Schiller formed boutique Roche Cyrulnik Freedman. The specialty is high-stakes litigation. Already it is involved in cryptocurrency litigation "Kleinman v. Wright." Among its alternate billing options are:

• Contingency
•  Startup equity
•  Litigation financing 

The acid test for business structures will be the economic downturn. The latest Citi Bank survey found that the future outlook for the global and U.S. economy has darkened among the law-firm leadership. A recession can unmask overexpansion in BigLaw, with some firms collapsing. The boutique may prove out to be the economy-neutral.

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Kim Kardashian - Future JD, Legal Activist

She stuck with it. 

Back when the legal media announced, usually with a smirk, that reality star Kim Kardashian was committed to becoming a lawyer, there was that universal eye-roll. 

Most experienced Kim's career plan as simply another promotional stunt.

But, Kim has stuck with it. As the Daily Mail reports, she had completed the first year of her four-year apprenticeship in California studying law. Every week she invests 20 hours in that. She anticipates taking the bar exam in 2022. 

In addition, she also has stuck with her legal activism. Her successful campaign to get Alice Marie Johnson out of prison was not a standalone event.

Her mission is to end the mass incarceration in the U.S.

Here is The New York Radio Hour on Mass Incarceration.

On April 5th, on Oxygen, the two-hour The Justice Project documentary will air. In it she features four cases of alleged misjustice. 

Her celebrity could be the game-changer in reforming the U.S. criminal justice system.

Even those who are politically moderate might have come to view the mass incarceration as a job-making system for the middle class. The corrections industry tends to pay well and, even in this volatile economy, provide employment security. 

It's odd that Dick Wolf, in programming such as "Chicago P.D.," doesn't push back against drug laws which result in arrest and incarceration.

If the sale of drugs like heroin and cocaine were made legal, regulated, and taxed, Hank Voigt and his team might be able to focus on other kinds of criminality. It could be the big leap forward if Kim pitches that story line to Wolf. 

Those taxes can fund solutions for homelessness. 

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Bluelining - New Kind of Housing Discrimination

It's as simple - and legal - as billing a house, condo, coop, or rental at an extraordinarily high price.

That puts in a play the new kind of discrimination.

That's bluelining.

In The Atlantic, Derek Thompson examines that and its implications.

Only the wealthy can afford to buy or to rent, at least in those zip codes.

Partly for that reason, 300 exit New York City daily and homelessness increases.

Meanwhile, the fear of becoming homeless has become a mainstream anxiety. Yes, in an economy where even graduates of brandname colleges live paycheck to paycheck, darkness, that is losing the roof over one's head, can fall fast. Loss of a job, a big medical bill, or a lousy credit rating can do it.

Of course, the term "bluelining" should enter the rhetoric of Election 2020.

Ironically, those who indirectly or directly created bluelining also have become victims of it, points out Thompson. Those are the assorted types in the real estate loop. Instead of focusing on affordable housing they built lux condos and McMansions, as well as palatial apartment complexes. 

However, half the condos they made happen in Manhattan during the past five years are empty. It's been a perfect storm.

Foreign money to purchase those is drying up as the economies of boom nations slow.

The Treasury folks have cracked down on using real estate purchases as a way to launder money.

And the prices themselves are, well, ridiculous. The ROI on putting money in the stock market could have a better.

The impacts of climate change will intensify the shortage of affordable housing. As the special on "60 Minutes" documented, it's no longer unthinkable that residents will have to consider migrating from a city because flooding becomes the norm. The deluge which happened every 800 years can now occur every year.

A positive unintended consequence is this: Pockets of the midwest can have an economic comeback because they are insulated from the worst of global warming. Unfortunately, a chunk of that could result from the real estate industry which engineers a surge in housing prices and in the average rental. Anticipate homeless to grow in those locations. 

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Harvey Weinstein's Alleged Sexual Misconduct Gave Rise to #MeToo - Now That Can Work for Him

It's no longer the elephant in the courtroom.

It's out there, including in The Wall Street Journal today. The ethos of the #MeToo movement is making it difficult to put together a jury in the Harvey Weinstein trial. It has been speculated that it was his alleged sexual aggressiveness which gave birth to that social initiative. 

As the WSJ reports, 90% of potential jurors interviewed had heard of the case. 

Of course, there will be a jury. There always is.

However, how the #MeToo mindset penetrated the culture provides almost infinite possibilities for declaring a mistrial during the legal proceedings or grounds for appeal.

The defense has requested a change of venue. Judge James Burke turned that down.

The reality is that in a digitally connected world, who hasn't encountered #MeToo over and over again? In addition, the media, including players like Ronan Farrow, made Weinstein a symbol of power abuse in the entertainment industry.

The appeals can reach the U.S. Supreme Court. There will be nothing to joke about on this subject matter, as there had in the recent age discrimination case. SCOTUS chief justice John Roberts brought up the pop culture phrase "Ok, Boomer." The world had a belly laugh.

Weinstein may die before this legal matter is resolved.

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Boies Schiller - 2nd Round of Partner Defections

Founder of Boies Schiller David Boies is aging. He is currently 78, with another birthday coming up in March.

Ever since Ronan Farrow published his The New Yorker Harvey Weinstein expose, Boies also carries around the stink of scandal on his shoe.

More recently, that has extended to his legal feud with take-no-prisoners Alan Dershowitz. That is related to the Jeffrey Epstein legal and media mess. 

And, some remember that Boies had been both on the board of directors of Theranos and in the role of legal counselor for its founder Elizabeth Holmes. Her trial for fraud is scheduled for August. In his book "Guilt by Accusation," Dershowitz classifies that dual identity as a conflict of interest.

Recently Boies Schiller reorganized, with Boies passing on some responsibilities. 

Now this: There have been two rounds of partner defections.

The exit of partners always sends a negative message about the law firm. Questions arise: Is the firm financially troubled? Is the brand in play? Is leadership dysfunctional? Has growth peaked? 

The first had been by three partners in the Miami office who formed boutique Heise Suarez Melville. 

More recently, reports Law.com, 10 lawyers left to form boutique Roche Cyrulnik Freedman. The boutique differentiates itself by both its alternative billing structure for clients and compensation for partners and associates.

In terms of fees, it offers BigLaw experience at lower and more flexible price points. They are configured as defense-side contingency, flat, success, and equity fees.

In terms of paying lawyers, there is a veering away from the billable hour. New business development and contingency work receive monetary recognition. Associates can earn more than market rate salary and, from the get-go, do interesting work. 

Meanwhile, the media and business media are watching both Boies and Boies Schiller for signs of a shift into a downward trajectory. On Glassdoor, the law firm receives a 2.9 out of a possible 5 rating, based on anonymous input from employees. 

This is the era of supreme power of the media. It seems that Boies and Boies Schiller have become easy targets. 

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"Bridget Kelly v. U.S." - SCOTUS May Rule Bridgegate Legalities Reflected Prosecutorial Overzeal

So, far, reports Fox, things look promising at SCOTUS for the plaintiff in "Bridget Kelly v. U.S."

Here is the Writ of Certiorari. Jones Day is representing Bridget Kelly. The legal matter had been known as "Bridgegate." 

The majority on the U.S. Supreme Court zeroed in on the issue of possible prosecutorial overzeal.

The blocking of the lanes on the George Washington Bridge for a political agenda was distasteful. However, those in the loop doing that had the authority to authorize such an action for municipal property. Also, no money or property had been exchanged for political favors. Moreover, recent trends in federal anti-corruption law have tightened the criteria for classifying as a crime such activities.

However, Ruth Bader Ginsburg and Sonia Sotomayor had concerns about the legalities and messages sent about a ruling on behalf of the plaintiff. But those represent two out of nine. 

In the high court for the one-hour argument had been former New Jersey governor Chris Christie.

He hadn't been personally fingered in the legal sense in Bridgegate. He contended he was unaware of the decision of Kelly and others to block the lanes. That was even though the caper was pulled off to punish a politico who was not supporting the governor in his reelection campaign.

Although not legally spanked, Christie, it was speculated, lost his shot at running for U.S. president because of the scandal. Those who understand how political operations work hammered that staff wouldn't have taken that step without the okay from above. Those kinds of organizations run on power. 

Ever since the Bridgegate story broke, in some circles there has been intense sympathy for Kelly. To them she symbolized The Good Catholic Girl - who had never came into her own. She continued to follow the socialization of much of Catholicism for females to support those in authority. The meme was selflessness. In addition, Kelly is the mother of four.  

The founder and operator of this blog is among those hoping SCOTUS gives Kelly a shot at a fresh start. I have a hunch that this ordeal forced her to find a self.

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