Law And More

"US v Elizabeth Holmes: James Mattis Bewitched

"Former U.S. Secretary of Defense James Mattis said he believed in Theranos Inc. founder Elizabeth Holmes so much that he not only became a board member but also invested a 'significant' amount of his own money into the company before it failed." Joel Rosenblatt, Bloomberg Law, September 22, 2021.

The amount Mattis invested was $85k. However, to him it had been a "significant" amount because his career had been in government service. That doesn't pay like Wall Street or even Corporate America.

In a sense he was bewitched. That was to the point that he didn't do any due diligence on Theranos. Instead he simply consulted with Holmes about the nature of the startup. Her vision for the finger-stick technology which she claimed would change the world, her charisma, and her enthusiasm cast a spell on him. 

Is there a lesson here for others who could get pulled into that kind of force field? Of course. But will they be able to have the sense of self and insight to resist? The odds seem against it. Humans need to believe. And, they grab on to whatever.

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Andrew Cuomo's Next - Odds Against Revolving-Doored into BigLaw (but reputation restoration is wide open)

"At this time, in light of the charges pending against him [Andrew Cuomo], I do not see a law firm looking to add him to their roster. The reputational harm to the firm would be overwhelming." Sheri Michaels, partner at Major, Lindsey & Africa, as quoted in Abovethelaw, August 11, 2021.

Maybe a Skadden or a Cravath won't pick up Cuomo as a partner on its payroll.

But, no one should forget that Andrew is a seasoned politico. He can engineer reputational restoration.

Wall Street criminal Michael Milkin, who had served time in prison, has evolved into a revered philanthropist.

Martha Stewart, who also spent time as a guest of the state, has a thriving career.

And, we developed a soft spot for Scarsdale Diet Doctor Herman Tarnower killer Jean Harris, even before her early release from prison. 

Of course, Andrew should lay low. For a while. That pattern was set by Jesus Christ. Before that prophet began his public life he spent three years in the desert. 

During his "time in the desert" Andrew can do low-profile but high-impact pro bono work. Later his public relations team can position and package the statistics from that as evidence of effectiveness. Yeah, this guy is a game-changer. Society needs him.

As Andrew moves into the first phases of a comeback he can call in favors for forums to present podcasts, participate in panel discussions, and deliver lectures. 

Meanwhile, of course, since Monday, many are wondering: Can Leon Black find his way back to being a respected human being?

The answer: Yes. Not long ago he did pull that off. That was after Paul Weiss successfully defended him in the first round of Jeffrey Epstein-association troubles. The litigator was the brilliant Brad Karp.

BTW, the one thing that prevents reputational turnaround is this: arrogance. Both former McKinsey & Co. head Rajat Gupta and current Yale Law School Professor Amy Chua (Tiger Mom) can't seem to shake that off. They remain The Unforgiven. 

Black must soften into human. Surely he had been that way at some time before his outsized career took off. 

For him the best route back to human is to create his own space. That's how upstart Pepsi snatched attention and market share from old-line Coca-Cola. The space it created was in packaging. Consumers couldn't get enough of cola. But Coca-Cola only packaged that in small bottles. Pepsi enabled cola-lovers to buy in bulk. A brand was born.

The space Black can conjure up is through his extensive art collection. He can open that to the public. And deliver personalized backgrounders on pieces such as "The Scream." Along with that he can provide informational tutorials and hands-on lessons for youth in high risk categories. The language of art is universal. It resonates.

The arts program at the Public Library branch in the tenement district of downtown Jersey City, New Jersey, probably kept my baby boomer generation out of a life of petty crime. At age 11, I earned actual money - $5 - selling my work. We listened when teachers talked to us about "going to college." 

Why this can work for Black: He loves art. That will come through. It will connect. The bottom line is: The guy is so much like you and me - only with different tragic flaws and a lot more money. 

As that literary adage hammers: America is the land of second, third, and fourth chances. Andrew's comeback would be his third. Black's also will be a third. The first: Lehman Brothers turned him down for employment. It assessed that he didn't have the brains or the personality to make it on Wall Street. 

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Holy Communion as Starter Sacrament in Roman Catholicism - The Bishops and Joe Biden

White dress.

White veil.

White knee socks.

White shoes.

White purse.

White prayer book.

White rosary beads.

White candle.

That was me on my First Communion Day. 

To the present time, I have never felt so important.

That's likely exactly what the one-time brilliant-in-marketing Roman Catholic Church intended in configuring the First Communion ritual. It is a starter sacrament whose aura becomes embedded in both the individual and collective memory bank. My family was beside themselves watching me walk in measured steps up to the altar. 

So, it's no surprise that currently the power structure of Roman Catholicism in the U.S. has zeroed in on communion as the symbol of the need to buy into its whole orthodoxy of beliefs and practices. As is well known, the bishops have been busy bees putting together a manifesto about this sacrament. It seems intended as a stern warning to all who approach its dogma menu on an a carte basis. Among them is U.S. President Joe Biden.

Those close to his administration, such as Brad Karp of Paul Weiss, might advise Biden to, well, smirk. 

Strategically, this busy-bee activity on the part of American Roman Catholicism seems like a very dumb move at the wrong time. And those bishops used to be such smart players.

 Pew documents that of all religions in the U.S. Roman Catholicism has lost the most members. Since the Boston Globe outed clergy sexual abuse of young boys beginning in 2002, there have been a loss of market share, bankruptcies and the shuttering of parish schools. 

Those of us supporting the Biden Administration policies such as pro-abortion could protest in front of our local diocese  headquarters in simulations of our attire for our First Communion.

A budding fashionista can loop into a big brandname by designing the females' Communion Dresses so that they won't be confused with wedding dresses. Much fun to be had. Plus interesting to time travel back to an era when Roman Catholicsm could cast such a spell on our immigrant families in the 1950s. 

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Wealth, Pedigree, 80 Years of Legal Public Service, Accidental Death - The Forever Haunted Legacy of the Murdaughs

"The [murder of Margaret Murdaugh and Paul Murdaugh] story here is an exercise in old money, accidental death, brutal murder and the online culture of pseudo-anonymous harassment–replete with allegations of a coverup [because of the 80 years in which the family had served as elected prosecutors] and uncertain allegiances." - Colin Kalmbacher, Law & Crime, June 17, 2021.

It is possible that the murderer or murderers will never be fingered. There are so many threads to the saga.

Even if there is an arrest and conviction/plea the darkness will continue to hover over this community in South Carolina.

Given the dominance of conspiracy theory, many will assume there was more to the story than whatever. It will not be enough to have proven by an arrest and conviction/guilty plea that the murders were an act of revenge about an accidental death. Or, from envy about wealth. 

What else had gone on?

Or if there is no arrest, imaginatons will run wild. 

The region could harden into a site imputed to have paranormal activity.

The ghost of the young woman - Mallory Beach - killed in the boating accident could be returning. Every evening she stands by the water.

The murdered mother and son could stalk the fields searching for justice.

The courthouse in which the family prosecutors served could showcase strange goings-on.

The murder or murderers could receive visits from some version of the Harpies. 

An enterprising entrepreneur can start a bus tour of all the places designated to be haunted. Much of the economy of Salem, Massachusetts operates just that way. It's the theatre of the damned.

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High-Risk/High Reward of Going Out of the Box: Apple Is Failing, Wilson Sonsini Is Succeeding

"Apple Inc. Chief Executive Tim Cook has said the company’s greatest contribution to mankind will be in health. So far, some Apple initiatives aimed at broadly disrupting the healthcare sector have struggled to gain traction, according to people familiar with them and documents reviewed by The Wall Street Journal." - Rolfe Winkler, The Wall Street Journal, June 16, 2021

This represents the usual situation of a business reaching out of the box. For any number of reasons it fails. Of course, the party line in BigTech is that failure is good. The organization learns from it.

However, failure looks bad. That can damage the brand, demoralize the workforce, shake organizational self-confidence and even in some kind of voodoo way set the company up for more failure.

In contrast to Appple, prominent law firm Wilson Sonsini also went out of the box. That was creating "products." That has been through its subsidiary SixFifty. In Bloomberg Law, Roy Strom reports:

"[Wilson Sonsini] launched SixFifty in 2019, making it one of the few top 100 U.S. firms invested in automating repetitive aspects of the law for clients. Its initial product helped companies respond to a California data privacy law, and pulled in nearly $4 million in revenue during its first six months on the market ..."

Among SixFifty's other "products" is a digital employee handbook providing information about the laws for all 50 states. 

This innovation has not only produced a new profit center for Wilson Sonsini. It has enhanced its branding. In addition, it enables it to diversify beyond practicing law per se. 

Sure, innovation, especially disrupting a market, is the meme of these times. Pursuing it can be high reward. But it also is hight risk.

Businessses focused on exiting their usual box should analyze how Wilson Sonsini went about it. A top business school should do a case study about why Apple stumbled in the health niche.

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Natasha Bannan - Cultural Identity Can Be Grafted on, But Disclosure All Too Likely in Digital Times

After being bullied in a literature and linguistics doctoral program in the late 1960s, I always wanted to be a White AngloSaxon Protestant. Back then, "someone from my background" just didn't fit into that culture.

Yes, at that time, I even had the fantasy of legally changing my highly ethnic Roman Catholic name "Mary Jane Genova" to "Arial Cabot" and attempting to pass for WASP. I would transfer to another doctoral program - a better one. And maybe with my new identity I would have a better chance of being admitted to a much more prestigious institution of higher learning.

But I didn't. I assessed that grafting on a new cultural identity wouldn't take. No one would fall for it. And I would look foolish. 

Maybe I was wrong. There are those who have succeeded with such an initiative. There had been, for example, Rachel Dolezal and Halaria Baldwin. At least, for a long time. 

Most recently, reports the Daily Mail, is the example of Natasha Lycia Ora Bannan. Born white in Georgia, she had passed herself off as Latina for years. 

That minority identity might have helped her career as a lawyer. For example, she had been President of the National Lawyers Guild. Also her personal branding had been as a prominent human rights lawyer.

In this digital age when it is easy to retrieve data, disclosure of what might be called "fake identities" seems inevitable. It's no longer smart to try such a caper. 

Stick with what's in the DNA.

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Google Workers' Union Allows Contractors to Join - Could Evolve into Major Development in Gig Economy

"Employees of Google and parent company Alphabet Inc. announced the creation of a union on Monday ... The Alphabet Workers Union said it will be open to all employees and contractors, regardless of their role or classification." - Josh Eideson, Bloomberg Law, January 4, 2021.

What this unionization development could represent is a "backdoor" way those in the gig economy can organize.

If so, then the concept of unions for workers could come roaring back. A significant disadvantage of being a gig player is having no or little voice in the terms and conditions of working. In addition, the comeback of unions can impact the employment at-will that is the law in every state, with the exception of Montana. 

According to the 2019 survey "Freelancing in America," there are 57 million participating in the gig economy. That means that about 36% of the total workforce in America has the status of independent contractor. 

That percentage can surge as the labor market reconfigures during and after COVID-19. Employers have to become increasingly cost-efficient and flexible in manpower needs. Hiring independent contractors versus full-time employees provides that ability.

In California, Prop 22 made it legal for ride-hail drivers and delivers to remain gig players. They, however, do receive some of the benefits of full-time employers. Uber coined the term "Hybrid Workers" for this new model in the world of work. That could also catch on, instead of independent contractors pushing to join unions such as the one at Alphabet.

Meanwhile, the formation of that union, as Bloomberg Law points out, accelerates tensions between management and the workforce at Google and its parent Alphabet. 

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Youth Ducking Cupid in Workplace - Lawyers Could Have Fewer Lawsuits Resulting from Ambiguous Relationships

"A tough economy, the pandemic and the #MeToo movement have combined to make younger workers wary of love on the job" - Krithika Varagur, The Wall Street Journal, November 22, 2020.

Youth is being prudent in being prudent in not allowing romance to rear its head in the workplace. The new game seems to be to be preventing ambiguity in relationships between the sexes - across all orientations.

That could reduce the number of lawsuits contending everything from sexual misconduct to retaliation. Criminal lawyers could also be handling fewer defenses for workplace violence generated by a souring internal love affair. 

The conventional thinking about office romances is that they currently are inevitable, given the long hours spent at work. In addition, there is the intensity involved in much of work which can create equally intense emotional bonds.

However, the potential problems associated with workplace romances could be getting through to youth. For Baby Boomers, it was the lesson our mothers always taught us. That was usually observed, at least by females, since employers didn't welcome office love affairs. Many, in fact, banned them back then.

As Wisestep reports, there are four major drawbacks of falling in love at work:

• Careers are at risk. Overall, employers don't welcome the complexities of love at work. Therefore, those involved could be ruled out for promotions and plum opportunities. 

 

• Co-workers could be thrown off their game. They are forced to deal with two people who now might be operating as one, even across different departments. It might be difficult to "read" and "size up" the joint entity. That can be frustrating, impeding productivity.

 

• There tends to be distraction, at some phase of the romance. The adage is on the money: Love is a form of madness. Employers want the total focus on work.

 

• The real possibility of conflicts of interest. Lovers in different departments could be disclosing, sometimes indirectly, confidential or sensitive information to the other. 

To that can be added the emotional and social fallout when the romance sours. Tension is palpable. Often, as in a divorce in the neighborhood, sides are taken. One party typically is expected to leave. Usually that will be the female or the one with less power. 

Recommendation: Employers should provide a stipend to unmarried workers to hire a respected matchmaker who does not mix and match internally. 

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Is the End Near? Meanwhile, Should Lawyers and Staff (the few left standing) Try Psychotherapy?

What will the stock market do today?

The college-aged do die of COVID.

No chance the kids will be back at school and experts predict it will be WFH for a long while.

Is the end near? Maybe. Maybe not.

But, will psychotherapy help any or all of that?

For many, the usual suspects aren't panning out. They are too undone to calm down enough to meditate and have too much work to duck out for a run.

Well, research documents that, yes, psychotherapy can be effective for some conditions. Among them is clinical depression.

Lawyers I coach usually agree that about eight sessions with a psychotherapist, along with medication, have played a part in their recovery. They would recommend that treatment to others.

Once they begin exiting a depressed state, then we can go on to create solutions for underlying career distress.

Being overwhelmed by the status quo in the workplace, as the book "Dying For a Paycheck" by Jeffrey Pfeffer documents, is not unique to the legal sector.

"I love what I do," goes the dominant meme. "But, how I have to do is killing me." Or, triggering medical problems and substance abuse. 

One of its major current challenges which is determining the future of psychotherapy, though,  (along with its high price) is its branding.

Perception is, well, everything. Game-changers, ranging from Steve Jobs to Donald Trump, proved that out.

The controversy surrounding the psychotherapy brand isn't new, of course.

Way back on September 29, 2013, the influential The New York Times published an article about psychotherapy's image challenges.

Around the same time, Laura K. Kerr, Ph.D. hammered the lack of transparency in psychotherapy as eroding the brand. Here is her article. 

In that thought leadership piece, Kerr observes:

" ... in the mental health field, experts aren't always perceived as transparent, and consumers have become more self-reliant, including conducting their own research through the Internet on what ails them."

This concern about transparency goes beyond the individual in treatment.

Institutions paying some or all of the bill, ranging from employers to insurance companies, also need to know more about approaches and outcomes. This push for data and evidence about outcomes is happening in a growing number of  industries. Even in the creative field of public relations, clients demand more accountability about results. Among the tools in public relations has been the AirPR software.

Back to the level of the individual consumer ...

In the early 1970s, an era of blind faith in psychotherapy (at least in some circles), I began three years of treatment at the University of Michigan Psychology Clinic and then the psychiatric outpatient facility at the University of Michigan Medical Center.

The therapist was then graduate student David W. Harder.

Harder had gone on to become a full professor in the Department of Psychology at Tufts University.  He is now retired but still does psychotherapy in the Boston Metro Area.

Years after that intensive therapy, when I was an entrepreneur struggling with the values of careerism, I again turned to Harder to help me sort out. Along the way I requested access to his clinical notes about my treatment. I was sensing the fit between therapist and consumer was not authentically productive.

Harder refused to provide the notes.

I had matriculated at Harvard Law School so, of course, I thought: lawyer. Since 2005, I have been a syndicated legal blogger.

I ponied up the fee to have a lawyer in Greenwich, Connecticut request the notes.

Actually, I was not surprised.

Reading them confirmed that, no, the fit was not for me. The tone and the content of the clinical reporting on my treatment did not align with my criteria for the therapeutic relationship. Even back in the 1970s I had a hunch Harder and I were not communicating. But psychotherapy had become the religion of so many educated at that time. Who was I to question the high priest?

What I recommend to those I coach who ask about the possibility of psychotherapy:

• First, request a complimentary introductory session with a therapist. Assess if you are being heard - or being communicated to from a hardened school of psychology.

 

• After a few sessions, request a copy of the clinical notes. If they are not turned over, that might represent a red flag. See a lawyer about what, if anything, to make of this. Should you start thinking litigation?

 

• Go over those notes with someone you trust and who cares about you.

 

• If you continue with this therapist, request the notes on an ongoing basis. Relationships, like everything else, can change.

 

• Experiment with DIY methods such as taking short breaks from work and the noise in your careerist head.

 

• Consult with others on your "recovery" team, such as your medical doctor, coach, 12-step sponsor, and close friend when it might be time to terminate psychotherapy.

Earning a living currently requires outsmarting the forces which seem tilted against workers. To do that demands being sound in mind and body. Psychotherapy could be a tool which gives a coping edge.

But everything about the process must be transparent. Voodoo is what we have fun with when we reach out to a psychic in Salem, Massachusetts. That experience is shaped by hocus-pocus. 

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In More Workplaces, Cupid Has to "Go On The Record"

"While workplace dating policies have been commonplace for years, typically targeting relationships between managers and subordinates, many companies have been compelled to update them to take into account new state anti-harassment laws and remote work activity spurred by the coronavirus pandemic." - Bloomberg Law, October 22, 2020. 

Everyone has a work story of a romance - theirs or someone else's - derailing. The drama. The awkwardness. Then, the fear of the next shoe to drop (that is, one, usually the female, nudged to leave the organization or transfer to another department.)

Those stories are usually pretty tame. The version that isn't could include allegations of abuse of power or of sexual harassment. Heads could roll. Lawsuits could be filed. Colleagues could bellow in pain. They would claim that favoritism shown for the one-time romantic partner prevented their own rise up the ladder.

The surprising thing is that widespread action about regulating office romances hasn't been taken sooner. Though it was universal or almost so it was supposed to be ignored.

As Bloomberg Law points out, employers have the right to regulate personal relationships between employees. The #MeToo movement has pushed that further. Many feel that employers have the responsibility to do so. In itself, that can prevent sexual harassment. 

The regulations are all over the map.

Some companies forbid all romance. The push-back on that policy is that the relationship will go underground. Also, the reality is that working together closely on a project can trigger love and lust. Suppressing that can distract.

Other companies require being informed that a romance is happening.

Then there are those mandating formal "love contracts."

Overall, the love game is one Mothers couldn't teach us. Their world of work was not so intense and did not involve such long hours. It was possible to remain detached. Also there was time to seek romance outside the workplace. 

For too many, the policies, whatever they might be, won't protect them from workplace crushes. They may not act on them. The other party may not encourage taking the next step. But they can be a source of so much preoccupation.

Reflection: All this could be excellent arguments for restructuring the organization with Artificial Intelligence. The manager won't find the robots crying at their desk because of a romance which soured.

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