Business Law Prof Blog

Neyland, Bates, and Lv on "Who Are the Best Law Firms?"

Professors Jordan Neyland (George Mason, Antonin Scalia Law School), Tom Bates (Arizona State University), and Roc Lv (ANU/Jiangxi University), have recently posted their article, Who Are the Best Law Firms? Rankings from IPO Performance to SSRN. Here's the Description:

If you have ever wondered who the best law firms are (which lawyer hasn’t?), have a look at our new ranking. My co-authors—Tom Bates at ASU and Roc Lv at ANU/Jiangxi University—and I developed a ranking method based on law firms’ clients’ outcomes in securities markets. 

There is no shortage of recent scandals in rankings in law. In particular, U.S. News’ law school rankings receive criticism for focusing too much on inputs, such as student quality or acceptance rates, instead of student outcomes like job quality and success in public interest careers. Many schools even refuse to submit data or participate in the annual ranking. Similar critiques apply to law firm rankings. We propose that our methodology improves upon existing methods, which frequently use revenue, profit, or other size-related measures to proxy for quality and reputation. Instead, we focus on the most important outcomes for clients: litigation rates, disclosure, pricing, and legal costs.

By focusing on the most relevant outcomes, this ranking system makes it harder for those being ranked to “game the system” without actually producing better results. Moreover, we use multivariate fixed-effect models to control for confounding effects, which provides some assurance that the ranking is based on a law firm’s skill rather than good timing or choosing “better” clients with a lower risk of getting sued.

We suggest that our innovation can provide some guidance and help improve upon extant methods. Rankings can be valuable tools to help evaluate a firm, school, or other institution. Despite the limitations and criticisms of rankings in law, perhaps the solution is to improve the current system instead of withdrawing from it altogether.

Lawyers, Law Students, and Mental Health

Warning: this post addresses suicide.

I was supposed to post yesterday about a different topic but I'm posting today and not next week because someone needs to read this today.

Maybe it's you. Maybe it's your "strong" friend or colleague.

I found out yesterday that I lost a former student to suicide. She lit up every room she walked into and inspired me, her classmates, and everyone she met. I had no idea she was living in such darkness. Lawyers, law students, compliance professionals, and others in high stress roles are conditioned to be on top of everything. We are the strong ones that clients and colleagues rely on. We worry so much about the stigma of not being completely in control at all times, that we don't get help. We worry that clients won't trust us with sensitive or important matters. We worry that we won't pass the character and fitness assessments to get admitted to the bar. 

The CDC released a report this week showing an alarming rise in depression, suicidal thoughts, and anxiety among our youth. The report noted that:

• Female students and LGBQ+ students are experiencing alarming rates of violence, poor mental health, and suicidal thoughts and behaviors.
• The rates of experiencing bullying, sexual violence, poor mental health, and suicidal thoughts and behaviors indicate a need for urgent intervention.

According to nami.org, one of the most respected organizations on the mental health:

1 in 5 U.S. adults experience mental illness each year
1 in 20 U.S. adults experience serious mental illness each year
1 in 6 U.S. youth aged 6-17 experience a mental health disorder each year
50% of all lifetime mental illness begins by age 14, and 75% by age 24
Suicide is the 2nd leading cause of death among people aged 10-14 

Those statistics don't surprise me. I have a family member who lost his first friend to suicide at age 12 and has lost almost ten others in the past ten years to suicide or overdoses. I have other family members who have been hospitalized repeatedly for mental health crises and others who refused to get help and were homeless. When people ask my why I care so much about my students and coaching clients, this is why. It's personal for me.

It's why I got mental health first aid certified when the University of Miami offered the training to staff and professors and why I'm often the only lawyer in the room at conferences and trainings with social workers, neuroscientists, and therapists who are getting their certifications. I stay in my lane, of course. But I want to understand more and I want to do my part to help change the profession because lawyers are in the top 10 for rates of suicide. We have disproportionately higher rates of depression, anxiety, and substance use disorders. Although I've been a happy lawyer for over thirty years, I know I'm a unicorn.

So here are some resources. This list could be pages long so I've compiled links that also refer to other resources:

988 Suicide & Crisis Lifeline

American Bar Association Mental Health Resources

Mental Health First Aid Training (I highly recommend this training and have completed it myself through my law school)

National Alliance on Mental Illness Resource Directory

Institute for Well Being in Law

Lawyer Assistance Programs by State

ABA Substance Use and Mental Health Toolkit for Law School Students and Those Who Care About Them

If you are a parent, especially of young children, get educated as soon as you can so that you can spot the signs early and support your children so they don't end up in these statistics. Ask your school administrators if they are familiar with the CDC's What Works in Schools Program.  Tell your school board and elected officials that mental health is a priority and vote for candidates who understand this as the public health crisis that it is. Sit down with your kids and watch The Social Dilemma. It may not change their addiction to social media, but it will help you understand why this generation is suffering so much that school districts have filed suit about the mental health impacts.

If you're a law student, check out the resources above. Don't get your health advice from TikTok or Instagram unless it's from a trained professional  (although I did do a TikTok video telling people to get help).

If you're a law professor, do you know where to send your students if they come to you seeking help? I have the cell phone number of our Dean of Students and I know I can reach out to her at any time if I'm worried about a student. I also share my family's story with my students so they feel safe asking for my guidance. I don't act as their therapist, but it's my job to prepare the students for the difficulties of the profession, and not just how to redline a document or argue a motion. 

If you're a law firm partner, consider investing in real training for your lawyers and your staff.  Don't just bring in someone to talk about mindfulness or diversity, equity, and inclusion once a year so you can check that box off. Invest in long-term, consistent, evidence-based training and coaching for your staff and lawyers at all levels (yes, managing partners too). Look at and reconfigure your billable hours requirements and layoff plans. Are they realistic? Are they really necessary? If you're comfortable, share your personal story of dealing with mental health challenges with your associates so they know you're human and have some empathy even as you have them billing over 2000 hours to get a bonus. 

If you're a general counsel, ask your firms about what they do to protect and preserve mental health, just like you ask about DEI initiatives. 

This is resource list is clearly just a start. What resources or tips do you have for those who are struggling in the profession? What will you today? If you do nothing else, share this message with others. It could be a matter of life or death for someone you know. 

Can The Next Generation of Lawyers Save the World?

An ambitious question, yes, but it was the title of the presentation I gave at the Society for Socio-Economists Annual Meeting, which closed yesterday. Thanks to Stefan Padfield for inviting me.

In addition to teaching Business Associations to 1Ls this semester and running our Transactional Skills program, I'm also teaching Business and Human Rights. I had originally planned the class for 25 students, but now have 60 students enrolled, which is a testament to the interest in the topic. My pre-course surveys show that the students fall into two distinct camps. Most are interested in corporate law but didn't know even know there was a connection to human rights. The minority are human rights die hards who haven't even taken business associations (and may only learn about it for bar prep), but are curious about the combination of the two topics. I fell in love with this relatively new legal  field twelve years ago and it's my mission to ensure that future transactional lawyers have some exposure to it.

It's not just a feel-good way of looking at the world. Whether you love or hate ESG, business and human rights shows up in every factor and many firms have built practice areas around it. Just last week, the EU Corporate Sustainability Reporting Directive came into force. Like it or not, business lawyers must know something about human rights if they deal with any company that has or is part of a supply or value chain or has disclosure requirements. 

At the beginning of the semester, we discuss the role of the corporation in society. In many classes, we conduct simulations where students serve as board members, government officials, institutional investors, NGO leaders, consumers, and others who may or may not believe that the role of business is business. Every year, I also require the class to examine the top 10 business and human rights topics as determined by the Institute of Human Rights and Business (IHRB). In 2022, the top issues focused on climate change:

1. State Leadership-Placing people at the center of government strategies in confronting the climate crisis
2. Accountable Finance- Scaling up efforts to hold financial actors to their human rights and environmental responsibilities
3. Dissenting Voices- Ensuring developmental and environmental priorities do not silence land rights defenders and other critical voices
4. Critical Commodities- Addressing human rights risks in mining to meet clean energy needs
5. Purchasing Power- Using the leverage of renewable energy buyers to accelerate a just transition
6. Responsible Exits- Constructing rights-based approaches to buildings and infrastructure mitigation and resilience
7. Green Building- Building and construction industries must mitigate impacts while avoiding corruption, reducing inequality, preventing harm to communities, and providing economic opportunities
8. Agricultural Transitions- Decarbonising the agriculture sector is critical to maintaining a path toward limiting global warming to 1.5 degrees
9. Transforming Transport- The transport sector, including passenger and freight activity, remains largely carbon-based and currently accounts for approximately 23% total energy-related CO2 global greenhouse gas emissions
10. Circular Economy- Ensure “green economy” is creating sustainable jobs and protecting workers

The 2023 list departs from the traditional type of list and looks at the people who influence the decisionmakers in business. That's the basis of the title of this post and yesterday's presentation. The 2023 Top Ten are:

1. Strategic Enablers- Scrutinizing the role of management consultants in business decisions that harm communities and wider society. Many of our students work outside of the law as consultants or will work alongside consultants. With economic headwinds and recessionary fears dominating the headlines, companies and law firms are in full layoff season. What factors should advisors consider beyond financial ones, especially if the work force consists of primarily lower-paid, low-skilled labor, who may not be able to find new employment quickly? Or should financial considerations prevail?
2. Capital Providers- Holding investors to account for adverse impacts on people- More than 220 investors collectively representing US$30 trillion in assets under management  have signed a public statement acknowledging the importance of human rights impacts in investment and global prosperity. Many financial firms also abide by the Equator Principles, a benchmark that helps those involved in project finance to determine environmental and social impacts from financing. Our students will serve as counsel to banks,  financial firms, private equity, and venture capitalists. Many financial institutions traditionally focus on shareholder maximization but this could be an important step in changing that narrative. 
3. Legal Advisors- Establishing norms and responsible performance standards for lawyers and others who advise companies. ABA Model Rule 2.1 guides lawyers to have candid conversations that "may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation." Business and human rights falls squarely in that category. Additionally, the ABA endorsed the United Nations Guiding Principles on Business and Human Rights ten years ago and released model supply chain contractual clauses related to human rights in 2021. Last Fall, the International Bar Association's Annual Meeting had a whole track directed to business and human rights issues. Our students advise on sanctions, bribery, money laundering, labor relations, and a host of other issues that directly impact human rights. I'm glad to see this item on the Top 10 list. 
4. Risk Evaluators- Reforming the role of credit rating agencies and those who determine investment worthiness of states and companies. Our students may have heard of S&P, Moody's, & Fitch but may not know of the role those entities played in the 2008 financial crisis and the role they play now when looking at sovereign debt.  If the analysis from those entities  are flawed or laden with conflicts of interest or lack of accountability, those ratings can indirectly impact the government's ability to provide goods and services for the most vulnerable citizens.
5. Systems Builders- Embedding human rights considerations in all stages of computer technology. If our students work in house or for governments, how can they advise tech companies working with AI, surveillance, social media, search engines and the spread of (mis)nformation? What ethical responsibilities do tech companies have and how can lawyers help them wrestle with these difficult issues?
6. City Shapers-  Strengthening accountability and transformation in real estate finance and construction. Real estate constitutes 60% of global assets. Our students need to learn about green finance, infrastructure spending, and affordable housing and to speak up when there could be human rights impacts in the projects they are advising on. 
7. Public Persuaders- Upholding standards so that advertising and PR companies do not undermine human rights. There are several legal issues related to advertising and marketing. Our students can also play a role in advising companies, in accordance with ethical rule 2.1, about persuaders presenting human rights issues and portraying controversial topics related to gender, race, indigenous peoples, climate change in a respectful and honest manner. 
8. Corporate Givers- Aligning philanthropic priorities with international standards and the realities of the most vulnerable. Many large philanthropists look at charitable giving as investments (which they are) and as a way to tackle intractable social problems. Our students can add a human rights perspective as advisors, counsel, and board members to ensure that organizations give to lesser known organizations that help some of the forgotten members of society. Additionally, Michael Porter and Mark Kramer note that a shared-value approach, "generat[es] economic value in a way that also produces value for society by addressing its challenges. A shared value approach reconnects company success with social progress. Firms can do this in three distinct ways: by reconceiving products and markets, redefining productivity in the value chain, and building supportive industry clusters at the company's locations." Lawyers can and should play a role in this. 
9. Business Educators- Mainstreaming human rights due diligence into management, legal, and other areas of academic training. Our readers teaching in business and law schools and focusing on ESG can discuss business and human rights under any of the ESG factors. If you don't know where to start, the ILO has begun signing MOUs with business schools around the world to increase the inclusion of labor rights in business school curricula. If you're worried that it's too touchy feely to discuss or that these topics put you in the middle of the ESG/anti-woke debate, remember that many of these issues relate directly to enterprise risk management- a more palatable topic for most business and legal leaders. 
10. Information Disseminators- Ensuring that journalists, media, and social media uphold truth and public interest. A couple of years ago, "fake news" was on the Top 10 and with all that's going on in the world with lack of trust in the media and political institutions, lawyers can play a role in representing reporters and media outlets. Similarly, lawyers can explain the news objectively and help serve as fact checkers when appearing in news outlets.

If you've made it to the end of this post, you're either nodding in agreement or shaking your head violently in disagreement. I expect many of my students will feel the same, and I encourage that disagreement. But it's my job to expose students to these issues. As they learn about ESG from me and the press, it's critical that they disagree armed with information from all sides.

So can the next generation of lawyers save the world? Absolutely yes, if they choose to. 

Give Yourself the Gift of Understanding Contract Drafting and Negotiation In Miami or Virtually February 2023

It's the holidays and it's time to treat yourself and members of your team to practical training and fantastic networking in sunny Miami in February. We don't have bomb cyclones down here. The Transactional Skills Program at the University of Miami School of Law couldn't be more excited to host the How to Contract Conference from February 15-17, 2023. 

• ContractsCon is a training and networking EXTRAVAGANZA focused on the practical contract drafting and negotiating skills that in-house counsel and contracts professionals need to know. 
• This event is a zero-fluff, to-the-point training on the nitty-gritty details. ContractsCon includes:
  • speakers who get the in-house experience and can explain why we draft the way we do
  • training centered around provision-level playbooks for you and your company to use when you return to work
  • workshops that provide a deeper dive into more nuanced topics and include interactive group activities
  • ContractsCon Playbook, featuring the advice and drafting approaches discussed at ContractsCon
  • access to How to Contract’s SaaS Contracts Training Library, with 20+ hours of training videos, the Cloud Services Agreement Playbook, and lots more (through March 31, 2023)
  • CLE pending in 26 states for up to 7 hours for virtual ticket holders and up to 13 hours for in-person attendees
• ContractsCon is an annual training and networking event for in-house counsel and  contract professionals presented by How to Contract and Law Insider and hosted by University of Miami School of Law. This 2-day event will feature over 20 live training sessions with some of the most well-known contract experts.
• Our promise is to share with you the core skills and expertise you need to work in-house on commercial contracts. All you have to do is show up ready to learn.
• ContractsCon is designed for in-house lawyers and professionals who want to learn:
  • the insights and techniques needed to handle the commercial contracts filling their inbox every day,
  • how experienced lawyers manage risk, work efficiently, and make the hard decisions in challenging circumstances,
  • WHAT to say, WHY to say it that way, and HOW to reach the best-negotiated deal you can with your contract counterparties.
• Give us two days of your time and you'll walk away with enhanced skills that enable you to better protect your company and clients. You'll gain more confidence.  You'll finally leave those "I don't know" and "I'm not sure" frustrations behind you. You'll also be able to network with other lawyers and professionals who share your desire to improve your skills and overcome any traces of imposter syndrome. 

Click here to get your ticket. And I'll see you in Miami, mojito in hand (after I do my session, of course).

How to Contract Conference- February 16-17 in Miami

I had originally planned to post Pt. 2 of the blog post I did a couple of weeks ago, but this announcement is time sensitive.

I'm thrilled to announce that the Transactional Skills Program at the University of Miami School of Law is partnering with Laura Frederick for the second How to Contract conference. It's time sensitive because we are considering holding a side event with a contract drafting and negotiation competition for law students if there's enough interest. If you think you would be interested, please email me at [email protected]

For lawyers, there are virtual and live options for the contract conference. I've cut and pasted from the website so you can see why you should come to sunny Miami (and it won't be hurricane season):

It is not about the mega deals.

ContractsCon is about the contracts you work on EVERY DAY. We want to help you learn how to draft and negotiate the deals you see all the time.

Because for every 100-page specialized contract sent to outside counsel, there are thousands of smaller but important ones that in-house counsel and professionals do day in and day out.

ContractsCon focuses on how we manage risk and make the tough decisions with less time and information than we need.

It is not a summary of recent case law.

ContractsCon is about providing actionable advice to help you do the work that you have sitting in your inbox RIGHT NOW.

It's not about case names or citations and we don't get into academic explanations.

ContractsCon focuses on the real-world expertise from experienced practitioners that you need to improve your contract skills and expertise and become better at drafting and negotiating in the real world.

It is not going to put you to sleep.

ContractsCon is about the fun and awesomeness of contracts. We are organizing it to be a true lovefest for everything contracts.  

Why not combine learning about contracts with having fun?

You'll meet other lawyers and professionals passionate about contract drafting and negotiating. Our sessions and workshops feature contracting superstars who love what they do and will share their excitement with you. Plus we're planning a ton of activities on-site and online to keep you engaged. 

ContractsCon is designed for in-house lawyers and professionals who want to learn:

• the insights and techniques needed to handle the commercial contracts filling their inbox every day,
• how experienced lawyers manage risk, work efficiently, and make the hard decisions in challenging circumstances,
• WHAT to say, WHY to say it that way, and HOW to reach the best-negotiated deal you can with your contract counterparties.

Virtual ticket holders get access to 6 HOURS of no-fluff practical contract training by experienced practicing lawyers.

People who attend in person in Miami get 12 HOURS of training, including 6 hours of interactive skills workshops.

I hope to see you in Miami in a few months. Don't forget to follow Laura Frederick on LinkedIn for great contract drafting tips and to let me know whether you and your students might be interested in participating in a contract drafting competition. 

 

 

 

 

 

 

Post-pandemic evolution, change management, and the role of in-house counsel

Join me in sunny Miami on April 26 for this in-person conference featuring outside counsel, inhouse practitioners, and academics. 

Panel topics include:

Change Management: The Legal Department of the Future -  More and more, in-house legal departments are employing new hybrid and remote work models, incorporating artificial intelligence and technology in their workflows, and restructuring and absorbing new teams after mergers, acquisitions, and divestitures. This panel discussion will focus on how the in-house legal department can be a champion in leading successful developmental and transformational change by implementing change management best practices to be effective and efficient, remaining client-focused, and being a trusted business advisor.

Remote Work:  Accelerated Adoption and Related Challenges - Which option would you choose: on-site, hybrid, or virtual? We will discuss the pros and cons of remote work arrangements, including the challenges of implementing a remote work policy in Latin America where the legal framework is a complex patchwork of requirements, as well as the strategies for creating culture and building a team in a remote work environment.

Counseling the Board of Directors (the panel I'm on)-  This panel will focus on issues that arise when counseling the board of directors and address important topics, including governance, ethics, fiduciary duties, director liability, best practices (diversity and environmental, social, and governance (ESG)), privileged insurance, and D&O insurance all in the context of private and public companies operating in the United States and Latin America.

Supply Chain: Challenges and Opportunities- Lessons learned from recent disruptions in global supply chains will shape crossborder business in the coming years. Our panel will discuss short- and long-term challenges and opportunities in supply chain management and logistics, as well as practical strategies for using technology, contractual protections, and risk-transfer solutions to overcome future supply-chain challenges.

What Is Your Company’s ESG Score? This panel will discuss the origins of climate change management, sustainability and how to operationalize it at your company, as well as how to transition to a low-carbon economy— including standards and disclosures. Panelists will also discuss the importance of implementing mechanisms to adopt a company’s ESG score as an ethical obligation to company commitments and as a governance imperative.

Click here to register.

If you make it down to Miami, I promise to buy you a mojito or cafecito. And don't worry, hurricane season doesn't start until June. 

 

New Year's Resolution for Lawyers

People rarely keep resolutions, much less ones they don’t make for themselves, but here are some you may want to try.

1. Post information about the law and current events that lay people can understand on social media. You don’t need to be a TikTok lawyer and dance around, but there’s so much misinformation out there by “influencers” that lawyers almost have a responsibility to correct the record.
2. Embrace legal tech. Change is scary for most lawyers, but we need to get with the times, and you can start off in areas such as legal research, case management, accounting, billing, document automation and storage, document management, E-discovery, practice management, legal chatbots, automaton of legal workflow, contract management, artificial intelligence, and cloud-based applications. Remember, lawyers have an ethical duty of technological competence.
3. Learn about legal issues related to the metaverse such as data privacy and IP challenges.
4. Do a data security audit and ensure you understand where your and your clients’ data is and how it’s being transmitted, stored, and destroyed. Lawyers have access to valuable confidential information and hackers know that. Lawyers also have ethical obligations to safeguard that information. Are you communicating with clients on WhatsApp or text messages? Do you have Siri or Alexa enabled when you’re talking about client matters? You may want to re-think that. Better yet, hire a white hat hacker to assess your vulnerabilities. I'll do a whole separate post on this because this is so critical. 
5. Speaking of data, get up to speed on data analytics. Your clients use data every day to optimize their business performance. Compliance professionals and in-house lawyers know that this is critical. All lawyers should as well.
6. Get involved with government affairs. Educate legislators, write comment letters, and publish op-ed pieces so that people making the laws and influencing lawmakers can get the benefit of your analytical skills. Just make sure you’re aware of the local, state, and federal lobbying laws.
7. Learn something completely new. When you do your CLE requirement, don’t just take courses in your area of expertise. Take a class that has nothing to do with what you do for a living. If you think that NFTs and cryptocurrency are part of a fad waiting to implode, take that course. You’ll either learn something new or prove yourself right.
8. Re-think how you work. What can you stop, start, and continue doing in your workplace and family life?
9. Be strategic when thinking about diversity, equity, and inclusion. Lawyers talk about it, but from what I observe in my lawyer coaching practice and the statistics, the reality is much different on the ground and efforts often backfire.
10. Prioritize your mental health and that of the members on your team. Do you need to look at billable hours requirements? What behavior does your bonus or promotion system incentivize? What else can you do to make sure that people are valued and continually learning? When was the last time you conducted an employee engagement survey and really listened to what you team members are saying? Whether your team is remote or hybrid, what can you do to make people believe they are part of a larger mission? There are so many resources out there. If you do nothing else on this list, please focus on this one. If you want help on how to start, send me an email.

Wishing you a safe, healthy, and happy 2022.

Since the Pandemic is Still with Us . . .

 . . . I figure it is still OK to publish a link to the SSRN posting of my co-authored article from the 2020 Business Law Prof Blog symposium, Connecting the Threads.  Published earlier in the spring, this piece, entitled Business Law and Lawyering in the Wake of COVID-19, was written with two of my students: Anne Crisp (who will start her 3L year in about a month) and Gray Martin (who graduated in May and will take the bar exam next week).  My March 30, 2021 post on business interruption insurance came from this article.  The SSRN abstract is included below.

The public arrival of COVID-19 (the novel coronavirus 2019) in the United States in early 2020 brought with it many social, political, and economic dislocations and pressures. These changes and stresses included and fostered adjustments in business law and the work of business lawyers. This article draws attention to these COVID-19 transformations as a socio-legal reflection on business lawyering, the provision of legal services in business settings, and professional responsibility in business law practice. While business law practitioners, like other lawyers, may have been ill-prepared for pandemic lawyering, we have seen them rise to the occasion to provide valuable services, gain and refresh knowledge and skills, and evolve their business operations. These changes have brought with them various professional responsibility and ethical challenges, all of which are ongoing at the time this is being written.

No doubt both the changes to business lawyering and the lessons learned from the many substantive, practical, and ethical challenges that have arisen in the wake of COVID-19 will survive the pandemic in some form. This offers some comfort. While the thought of another systemic global crisis is unappealing at best, what we have experienced and learned will no doubt be useful in maneuvering and surviving through whatever the future may bring.

This article came to be because I agreed to take on additional research assistants after summer jobs were scuttled for many students in the spring of 2020.  I shared the germ of an idea with Anne and Gray.  They took that idea and ran with it, adding important new concepts and support.  The writing collaboration naturally followed.  They co-presented the article with me at the symposium back in October.  Working with them throughout was so joyful and fun--a true pandemic silver lining.

COVID-19 and Lawyers Working from Home

A few weeks ago, I posted on COVID-19 and business interruption insurance, quoting from part of a forthcoming coauthored article presented at the Business Law Prof Blog symposium last fall.  This week, I am posting a few more teaser paragraphs from that same article, which focuses overall on business law issues, practice changes, and professional responsibility challenges emanating from the pandemic.  Today's excerpts focus on lawyers working from home.  Second-year UT Law student Anne Crisp is the primary author of the part of the paper that includes these paragraphs (from which footnotes have been omitted).

 . . . While the work-from-home movement was already taking off in many sectors prior to COVID-19, the legal sector had been slow to adopt this working model. Leaving aside multijurisdictional practice challenges, lawyer resistance to remote work has been attributed in large part to the perceived relationship-based nature of lawyering and the perception that at least some clients expect to meet with their legal counsel in well-appointed offices. But along came COVID-19, and lawyers could no longer avoid the pull of the work-from-home movement. If lawyers wanted to bill hours, they were going to have to work from home.

As lawyers began working from home, law offices were forced to enhance their technological resources and capabilities to meet the needs of the firm and to confront the technological challenges associated with such developments. Issues around laptop-versus-desktop use, home Wi-Fi capacity and security, and virtual private networks emerged as pressing problems to address. Lawyers, like everyone else in the world, began using videoconferencing and telecommunication platforms such as Zoom to meet with clients, colleagues, and the courts on a regular basis, rather than in specific circumstances. Lawyers adapted to the work-from-home model not by choice, but out of necessity.

Law firms also had to address security concerns that arise as a result of remote working. Malware infections, hacking, and other challenges are more difficult to prevent once workers are no longer regularly connected to a law office’s computer network. Firms with appropriate cybersecurity systems in place had to ramp up their availability to cover more workers; those without appropriate security technologies needed to acquire and implements them on an urgent basis.

Moreover, communication complications became manifest, and the need to address them holistically became important. “In a remote working world, everyone’s delegation/supervision/feedback skills must be even better—more frequent, more clear and more realistic—than usual.” For example, in a private firm, a practice group leader may need to intentionally ask how an individual is doing because the leader can no longer gauge this based on their interaction with the individual in the office. Junior lawyers in office settings must be more transparent and realistic about their own constraints as their home environments change. It has also become more important for junior lawyers to take clear ownership of the work they are doing so that senior lawyers, whose focus is on more directly helping clients navigate the issues arising, can more easily monitor who is working on what and keep track of the status of projects. Before the pandemic, communication challenges of the kinds mentioned here may have been barriers to lawyers working from home. Now, lawyers have no choice but to overcome them.

While the work-from-home movement has presented new challenges surrounding security and communication, it has also produced some positive effects. Working from home often creates a more relaxed work environment that has been shown to lead to more creativity. Additionally, lawyers are enjoying the benefits of having no commute. Many lawyers have liked working from home so much that they hope to continue to do so once the pandemic is over. It remains to be seen whether law firms will allow them to continue to do so in a post-pandemic world.

There is so much I could say about all this.  But I will confine myself here to two points, both stemming from the text of that last quoted paragraph. The positive aspects of lawyers' adaptive work-from-home lives generate their own set of challenges. 

First, law firms are making decisions about the extent to which they will allow work-from-home after the pandemic.  (So are law schools.)  The managing shareholder of a regional law firm's Knoxville office participated in my Advanced Business Associations class last week, and he indicated his concern that new and junior associates be physically present in the office in order to ensure that they are exposed and acclimate to the firm's culture. 

Second, return-to-the-workplace mandates will result in some bumpy transitions back to full in-person operations.  Child, elder, and general family care routines devised for use during the pandemic may be as (or more) difficult to unwind than they were to create.  For many, it is not an option to merely go back to the way things were before COVID-19.

I suspect that, as we come out of the pandemic, different firms will handle 2021 work location transitions in different ways based on their size, market, reputation, culture, and more.  The type of work being performed by the lawyers and client preference are likely to play specific guiding roles in the analysis.  This certainly will be an area to watch.

The Business Case For Promoting Lawyer Well-Being

It's been one year since the US declared a pandemic. It's been a stressful time for everyone, but this post will focus on lawyers.

I haven't posted any substantive legal content on LinkedIn in weeks because so many of my woo woo, motivational posts have been resonating with my contacts. They've shared the posts, and lawyers from around the world have reached out to me thanking me for sharing positive, inspirational messages. I hope that this care and compassion in the (my) legal community will continue once people return back to the office.

Earlier this week, I took a chance and posted about a particularly dark period in my life. I've now received several requests to connect and to speak to legal groups and law firms about mindset, wellness, resilience, and stress management. I've heard from executives that I used to work with 15 years ago asking to reconnect. Others have publicly or privately shared their own struggles with mental health or depression. I'm attaching a link to the video here. Warning- it addresses suicide prevention, but it may help someone. 

I'm also sharing an article that my colleague Jarrod Reich wrote last year. He and I have just finished sitting on a panel on Corporate Counsel and Professional Responsibility Post COVID-19, and it's clear that the issue of lawyers and mental health could have been its own symposium. Here is the abstract for his article, Capitalizing on Healthy Lawyers: The Business Case for Law Firms to Promote and Prioritize Lawyer Well-Being. 

This Article is the first to make the business case for firms to promote and prioritize lawyer well-being. For more than three decades, quantitative research has demonstrated that lawyers suffer from depression, anxiety, and addiction far in excess of the general population. Since that time, there have been many calls within and outside the profession for changes to be made to promote, prioritize, and improve lawyer well-being, particularly because many aspects of the current law school and law firm models exacerbate mental health and addiction issues, as well as overall law student and lawyer distress. These calls for change, made on moral and humanitarian grounds, largely have been ignored; in fact, over the years the pervasiveness of mental health and addiction issues within the profession have persisted, if not increased. This Article argues that these moral- and humanitarian-based calls for change have gone unheeded because law firms have not had financial incentives to respond to them.

In making the business case for change, this Article argues that systemic changes designed to support and resources to lawyers will avoid costs associated with lawyer mental health and addiction issues and, more importantly, create efficiencies that will increase firms’ long-term financial stability and growth. It demonstrates that this business case is especially strong now in light of not only societal and generational factors, but also changes within the profession itself well. As firms have begun to take incremental steps to promote lawyer well-being, lasting and meaningful change will further benefit firms’ collective bottom lines as it will improve: (1) performance, as clients are demanding efficiency in the way their matters are staffed and billed; (2) retention, as that creates efficiencies and the continuous relationships demanded by clients; and (3) recruitment, particularly as younger millennial and Generation Z lawyers—who prioritize mental health and well-being—enter the profession.

If you have any feedback on Jarrod's article or tips on how you are coping, surviving, or thriving in these times, please feel free to drop them in the comments. 

Take care and stay safe.

Celebration of Harvest

(A bit of the harvest picked from my parent's garden in north Georgia yesterday)

Last Thursday my neighborhood book club discussed work by poet David Whyte. This book club has been especially life-giving during the pandemic. I have deep admiration for every member of the group and always learn from our meetings. In March and April, we briefly moved to Zoom, but were unable to capture the same energy. We then decided to meet in person, bringing chairs to a member’s spacious driveway that backs up to common green space.

The work we discussed last week was not actually a book, but rather a few hours of David Whyte’s musings, only available in audio form. Much of the talk involves Whyte reading poetry – primarily his own, Rainer Maria Rilke’s and Mary Oliver’s – and relating that poetry to questions many of us ponder in midlife.

While I can’t locate the exact quote in the long recording, Whyte used a harvesting metaphor effectively. Whyte suggests that if we don’t slow down to be present for the harvest times in our lives, the fruit will rot on the vine. He reminds us, for example, that our child will only be five years old for a relatively short season. By being present for the harvest, I think Whyte means celebrate (among other things).

The practice of law, at least as it appears to be carried out by most major firms, leaves precious little time for celebration. In fact, during my handful of years at two major law firms, I can only recall a single occasion of truly pausing to celebrate the harvest.

This occasion involved a closing dinner. A celebratory dinner after closing a deal to buy or sell a company is relatively common in M&A practice. In my somewhat limited experience, however, law firms often organized these dinners to impress clients and tee up future deals. Networking, not savoring, is the focus. Often only the partners and clients attend closing dinners. The associates (or at least the junior associates) are usually back in the office working on the next matter.

This dinner was different. King & Spalding partner Russ Richards had just closed two relatively large deals in the same week with the assistance of same four associate attorneys. While the hours had been grueling, even by BigLaw standards, I didn’t expect to be invited to a closing dinner. Surprisingly, Russ not only invited the other three associates and me, but also encouraged us to bring a dates. Moreover, this was not a dinner to impress the clients; no clients were invited. We did not spend much time, if any, setting up future deals. We just celebrated work well done with wonderful wine, food, and company.

If there were more of this sort of unadulterated celebration of the harvest in BigLaw, I imagine the turnover would be much lower. And maybe one of the reasons Russ Richards excelled in a 45+ year career with the same firm is because he created moments of celebration and reflection like these. As I have argued before, I think one of the ways to make BigLaw more humane is to work in some time for celebration and rejuvenation, perhaps in the form of sabbaticals. A formal promotion to “senior associate” around the four-year mark, followed by a brief sabbatical (even as short as one month) would do wonders for the profession. Even longer sabbaticals, perhaps tied to a project improving the community, could be worthwhile as well.

Of course life is not, and probably should not be, constant celebration. To stretch Whyte’s metaphor further—as anyone who has tried their hand at farming knows—fruit that is the product of a season of sweat tastes sweeter than fruit obtained from a grocery deliver service. The gritty, difficult, back-spasm-inducing times are an important part of the process. That said, especially for those of us bent more in the direction of overwork, making some space to celebrate the harvest is essential.

Finally, and importantly, we should make a point to notice and celebrate the achievements of others. Whyte seems to focus on being present for the fruition of our own work, but I am convinced that pausing to celebrate the accomplishments of others can be even more worthwhile. 

Law Firm Mandatory Arbitration On the Decline?

When I was a number of years into my law practice, Skadden, Arps, Slate, Meager & Flom LLP, the firm at which I worked, asked me to sign a mandatory arbitration agreement.  Signing was voluntary, but the course of conduct indicated that it was strongly suggested.  I thought about it and declined to sign.  

It was hard for me to imagine bringing a legal claim against my law firm employer.  I knew that if I were to sue Skadden, the matter would have to be very big and very serious--a claim for a harm that I would not want compensated through a "compromise recovery," which I understood could be a likely result in arbitration.  I also was concerned about the lack of precedential value of an arbitration award for that kind of significant claim--permitting systemic bad employer behavior to be swept under the rug.  And finally, I understood and respected the litigation expertise and experience of my colleagues in the firm and their connections to those outside the firm--expertise, experience, and connections that I believed would be more likely to impact negatively the opportunity for success on the merits of my claim in an arbitral setting.

I watched with interest as arbitration clauses caught on in this context, becoming (in many firms) a condition of employment.  Other BLPB editors have written about mandatory arbitration in the employment law context in this space in the past, including Ann Lipton here and Marcia Narine Weldon here.  The issue also has been raised by other bloggers and in the news media.  I remember stories about summer associate mandatory arbitration classes, for example.  (See, e.g., here and here from 2018.)

I recently read this article from The American Lawyer, which describes a trend away from these mandatory arbitration clauses in law firm employment.  What goes around comes around . . . .  I was especially interested to read that some firms are dispensing with the practice because employees/prospective employees disfavor these agreements.  I also noted the article's description of key substantive arguments against mandatory arbitration:  "[T]he clauses are unfair to workers and can allow large law firms to conceal accusations of racism, sexual harassment and assault."  This is consistent with my own reasoning.  Moreover, I admit that, as I was contemplating whether to sign Skadden's arbitration clause, sexual misconduct was among the big and very serious claims I determined that I would want to pursue in court--for remedy-related and public disclosure reasons.

Although the firm's leadership may have disapproved of my refusal to sign that agreement way back when, I still think I made the right decision--at least for me.  If arbitration is mutually beneficial, one would hope that both parties would recognize that at the outset of their relationship or at the time a dispute arises.  Otherwise, power imbalances tend to dominate in this space.  Dispute resolution situations also may involve emotional and psychological factors that can impact judgment and strategy.  Regardless, I am a "preserve as many options as possible" kind of gal.  As a result, taking a position that maintains my rights to sue or participate in a class action claim seems natural and appropriate.  I will hold onto those rights, if I can.

How (Not) To Teach an (Online) Transactional Drafting Course

Later today, the students in my nine-week online Transactional Lawyering: Drafting and Negotiating Contracts Course will breathe a sigh of relief. They will submit their final contracts, and their work will be done. They can now start reading for their Fall classes knowing that they have completed the work for their required writing credit. My work, on the other hand, won’t end for quite a while. Although this post will discuss teaching an online course, much of my advice would work for a live, in person class as well.

If you’ve ever taught a transactional drafting course, you know that’s a lot of work. You are in a seemingly never ending cycle of developing engaging content, teaching the material, answering questions, reviewing drafts, and grading the final product. Like any writing course, you’re in constant editing and feedback mode with the students.

If you’ve ever taught an online course, you know how much work it can be. I taught asynchronously, meaning I uploaded materials and the students had a specific time within which to complete assignments, typically one week or more. Fortunately, I had help from the University of Miami’s instructional design team, otherwise, I would likely have been a disaster. They provided me with a template for each module, which forced me to really think through the objectives for each class session, not just the course as a whole. In my traditional courses I have learning objectives, but I have never gone into so much detail either in my head or in writing about what I wanted the student to get out of each individual class.

Teaching a drafting course online was much more work than I expected, but I can’t wait to do it again. If you’re thinking about it, learn from my travails and triumphs. First, here are my suggested “Do’s”:

1. Find a way to build community: I wanted to ensure that students felt connected to me. I scripted a welcome video and the instructional design team filmed and edited it. This way students saw my face. I wanted the students to see each other as well, so I required them to film a 2-minute introductory video of themselves and upload it so that students could “see” their classmates. Students then commented on their peers’ videos welcoming them to the class. I did short videos for most of the modules, but these did not always show my face. No video was more than 10 minutes long because apparently today’s students can’t pay attention for too much longer than that.
2. Have students work in groups (at first): I divided the 16 students into 4 law firms based in part on what I saw in their videos. I wanted some diversity of gender, race, and experience in the groups. Students drafted a law firm agreement outlining how they would interact with each other, meet deadlines, and resolve disputes. They also picked a firm name and managing partner. They assessed themselves and each other as group members based on criteria that I provided. The group work minimized the amount of feedback that I had to provide. As a group, they drafted the law firm agreement, a client engagement letter, and worked on a short contract. Some assignments were graded and some were ungraded. The group work counted for 10% of the grade.  This percentage wasn’t enough of the grade to cause panic, and the team assessment ensured that they didn’t slack off and benefit from their peers’ hard work.
3. Mix it up: For each class, I had students review a presentation on Echo 360. Often, they answered questions that I posed in the presentation or did exercises from Tina Stark’s contract drafting book. On other occasions, they posted responses to prompts on the discussion boards and commented (constructively) on other responses, citing the rule or principle that buttressed their position.
4. Make them keep track of their time and do a bill: Every lawyer hates tracking time, but it’s a necessity. I tell the students that they’ll thank me later. Each student, even on group assignments had to track their time and turn in a bill. This helped me gauge how the groups and students compared to each other. I also knew which student worked on which parts of the contracts.
5. Let them negotiate:  After the group work portion of the course ended,the students negotiated the terms of their final contract using a set of secret facts. I required them to develop and turn in a negotiation strategy using materials and videos that I put together. Armed with their BATNAs, WATNAs, and ZOPAs, I told them to spend no more than one hour negotiating. I required them to film their negotiations, upload them, and send them to me. They then worked on individual term sheets (for a grade). After the negotiations ended and I had received all term sheets, I released the secret facts and had the students assess themselves and their opposing counsel on their negotiation skills and tactics. I also provided feedback to each student on their negotiation performance and term sheets.
6. Require them to communicate with the client:I required a 1-2 page client cover memo or email for almost every assignment focusing on tone, language, use of legalese, etc. In my comments, I explained the importance of this type of legal writing and of tailoring the language to different types of business clients. When they worked on NDAs, I reminded that them that client may never actually read the contract, so they needed to ensure that the cover memo was sufficiently detailed to provide material information without being overwhelming.
7. Make them teach: They say that when you teach, you learn twice. I required the each student to develop a 5-7 minute video on an assigned topic. Each student “presented” to either a group of lay/business people or a group of junior associates attending a CLE. They then had to write a blog post of  between 750-1000 words. I required students to watch each other’s videos and comment as either a business person or a junior lawyer. This provided a review of the class for the viewers. This assignment counted for 10% of the grade, but as an extra incentive to take the assignment seriously, the student with the “best” video received an extra week to turn in the joint final contract, meaning that the opposing counsel also benefitted. FYI, I was generally blown away by the videos.
8. Allow them to use precedents and then instruct them on the limitations: Many of the students had never seen an NDA, and I allowed them to use precedents. Most were surprised by how many comments I had on their final products, especially since many of the precedents came from big firms. This was a valuable lesson for them on precision and the dangers of blind cutting and pasting.
9. Make them redline and draft a contract with opposing counsel:The final assignment required them to draft a contract based on their negotiated terms. They soon realized that they had to do additional negotiation because some of the terms did not make sense once they started to memorialize them.
10. Have office hours and use video conferencing:I practically had to beg the students to have office hours with me. They had no problem emailing with questions, but generally didn’t utilize my office hours, which were incredibly flexible. I offered online and in person hours, but only two students met with me during the semester outside of the live mandatory office hours. I had a mandatory live grading session by video to discuss their NDAs, their upcoming negotiations, and any questions they had about the course. During that live grading session, I acted as a partner in their law firm and then stepped into professor role.

What didn’t work as well? As you can imagine, to do the job correctly, I had a LOT of work to do. I clearly gave too much work over a nine-week period, because I know much work I had to do to give them feedback. I just wanted them to be armed with the skills they will need in the real world, but I overdid it. And this meant that sometimes I did not meet my own deadlines for getting feedback to them. Truthfully, I imposed some of that burden on myself. I offered students the chance to turn in drafts of almost every assignment for feedback. About 25-30 percent of the students took me up on that offer, but every week, I emailed all of the students with tips to improve based on the trends that I saw. In retrospect, I would give fewer assignments over a longer period of time, and would better utilize the discussion boards to foster that sense of live class discussion.

After all of that, I’m gearing up to do it again for the Fall, this time over a 15-week period. Even though I will have more time, both I and the students will have other classes. I’m also teaching business associations and legal writing, and the students will have their own classes, jobs, law reviews, and extracurricular activities to contend with.

If you have any questions or tips, leave them below or email me at [email protected] I plan to learn more about course development at the University of Denver hybrid/online learning conference on September 26th. I’ll update this post after that conference. In the meantime, this weekend, I’ll be retooling my syllabus based on my summer experience and what I’ve learned this week at SEALS. Correction, I’ll retool in between grading the joint contracts.

Managing Compliance Across Borders Conference at the University of Miami- June 26-28

 

 

 

Join me in Miami, June 26-28.

 

 

June 26-28, 2019 Managing Compliance Across Borders is a program for world-wide compliance, risk and audit professionals to discuss current developments and hot topics (e.g. cybersecurity, data protection, privacy, data analytics, regulation, FCPA and more) affecting compliance practice in the U.S., Canada, Europe, and Latin America. Learn more

Register Here

See a Snapshot: Who Will Be There? You will have extensive networking opportunities with high-level compliance professionals and access to panel discussions with major firms, banks, government offices and corporations, including: BRF Brazil Carnival Corporation Central Bank of Brazil Endeavor Equal Employment Opportunity Commission Eversheds Sutherland Fidelity Investments Hilton Grand Vacations Ingram Micro Jones Day Kaufman Rossin LATAM Airlines Laureate Education, Inc.   MasterCard Worldwide MDO Partners Olin Corporation PwC Royal Caribbean Cruises Tech Data The SEC TracFone Wireless U.S. Department of Justice Univision UPS XO Logistics Zenith Source

See All Speakers & Panel Topics

Location Donna E. Shalala Student Center 1330 Miller Drive Miami, FL 33146

CLE Credit Upwards of 10 general CLE credits in ethics and technology applied for with The Florida Bar

Program Fee: $2,500 $1,750 until June 1  Use promo code “MCAB2019” for discount  Non-profit and Miami Law Alumni discounts are available, please contact: Hakim A. Lakhdar, Director of Professional Legal Programs, for details

Register Here

Learn More: Visit the website for updated speaker information, schedule and topic details. This program is designed and presented in collaboration with our partner in Switzerland

 

 

 

 

 

 

 

Can Lawyers and Law Students Be (More) Effective Working and Learning Virtually?

I blogged two weeks ago about whether we were teaching law students the wrong things, the wrong way, or both. I’ve been thinking about that as I design my asynchronous summer course on transactional lawyering while grading asset and stock purchase agreements drafted by the students in my spring advanced transactional course. I taught the spring students face to face, had them work in groups, required them to do a a negotiation either in person or online, and am grading them on both individual and group work as well as class participation. When I looked at drafts of their APAs and SPAs last week, I often reminded the students to go back to old PowerPoints or the reading because it seemed as though they missed certain concepts or maybe I went through them too quickly— I’m sure they did all of the reading (ha!).  Now, while designing my online course, I’m trying to marry the best of the in person processes with some of the flipped classroom techniques that worked (and tweaking what didn’t).

Unlike many naysayers, I have no doubt that students and lawyers can learn and work remotely. For the past nine years, I have participated as a mentor in LawWithoutWalls, a mostly virtual experiential learning program started by University of Miami professor Michele DeStefano. Also known as LWOW, the program matches students from around the world with business people and practicing lawyers to develop a project of worth over sixteen weeks. Team members meet in January in person and never see each other in person again until April during a competition that is judged by venture capitalists, lawyers, entrepreneurs, and academics. I mentored a team of students from Bucerius in Germany, Wharton in Pennsylvania, and the University of Miami. Banking behemoth HSBC sponsored our project and staffed it with lawyers from Singapore, Canada, and the UK. Other mentors on the team hailed from Spain and the UK. On any given week, 7-10 people joined Skype calls, chatted in WhatsApp, drafted on Google Docs, and accessed Slack. They attended mandatory webinars weekly via Adobe Connect on developing business plans, pitching to VCs, and working with clients. Seventy percent of the people on the seventeen teams spoke languages other than English as the first language. 

How did this virtual experience work? Extremely well, in my view. After some growing pains, students adjusted quickly as did the business partners, who are used to setting up conference calls and working across borders. Some of the winning teams developed projects that provided virtual reality training on implicit bias for police officers; informed consumers about food freshness to combat food waste; and organized health information for foster care children on a blockchain-powered platform. Humble brag- my team won best overall project by developing a solution to use blockchain and smart contracts in syndicated lending that has the potential to save the bank almost 2 million per year. I also mentored last year’s winner, Team Spotify, with students from Miami, Colombia, and Chile and lawyers housed in Sweden, California, and New York. Each year, teams do almost all of this hard work remotely, across time zones, and with language differences. Students collectively interview hundreds of subject matter experts over 16 weeks, and the vast majority of those interviews take place via phone or video and with people in different countries. Other sponsors for LWOW included Accenture, White and Case, Pinsent Mason, Microsoft,  Cozen O'Connor, LegalZoom, Eversheds Sutherland, LatAm Airlines, and Legal Mosaic-- all companies and law firms that see the benefit of these skill sets.  Significantly, every year, a cohort of teams does all of the work virtually, never meeting in person for a kickoff. That virtual team winner competes in person with the traditional teams each April, and often wins the whole competition. Clearly, these students develop special skills by necessity. I plan to learn from those experiences as I design my course.

My experience with LawWithoutWalls and as a former compliance officer (where we often did training online and via video) makes me optimistic about online learning and working. In my summer course, I will have students work in groups, where they will use the latest virtual teaming tools. I will have live office hours via Skype, Zoom, or FaceTime, and I will require that some of the groups do their meetings via video as well to have a connection outside of email. Students will draft and edit on community bulletin boards. They will post their own video presentations and "webinars" geared toward fictitious business clients. Working collaboratively and creatively are key skills in the real world, and they will be key in my class. 

But there is a lot of resistance in both the legal community and academia regarding the online world. Last week, I attended a seminar at a law firm and met a member of the Florida Board of Bar Examiners. I asked his opinion on the state of students and young lawyers. I was particularly interested in his thoughts because he’s also a partner at a large law firm in our state. Like some quoted in my prior post, he believes that online coursework is a poor substitute for face to face learning. He further opined that when people don’t work in offices, they miss the camaraderie of being around peers and their work suffers. These are valid concerns. Many lawyers are unhappy in general, and the way people hide behind digital devices (even when in the same room/office) can lead to isolation, depression, and poor networking and social skills. 

But these drawbacks should not doom online learning and remote working. Most of my graduating 3Ls will take their bar prep courses online. They claim that it makes no sense to drive to campus “just to watch a video of a professor speaking.” They also like the idea of being able to rewind videos to take notes. The indicated that they will meet up with friends when they want to study together and may even come on campus to watch their online coursework for a sense of community. But significantly, they don’t see the need to learn in the traditional ways. Personally, I love good online courses but I also love the ability to have face to face interaction with teammates- even if that’s via video. Being in the same physical space also allows for chance interactions that can lead to enriching conversations. On the other hand, sometimes there's no choice. Many readers may remember that years ago, in harder economic times, companies cancelled non essential business travel and people got used to video meetings. Many employers now interview candidates by Skype first before bringing them in. Learning and working virtually is no longer a novelty. Some of our students  will work in co-working spaces for firms or companies where everyone works from home. 

Change is coming and in many places, already here. Law professors must prepare students to practice in this new world while not sacrificing pedagogical gains. This requires training on project management and effective communication with team members— all non-substantive topics and that will give many people pause. We also need to make sure that students know how to communicate with clients and employers face to face in business and social settings. Some professors will say- correctly- that they have enough to contend with making sure students understand the law and can pass the bar. But, for those of us interested in online learning, we need to do more. We have to make sure that we prepare students for both the "hard" and "soft" skills.  Most important, we need to make sure that these online courses have the rigor of traditional classes-- US News is watching.

I’m open to suggestions of what has worked for you and what hasn’t so please feel free to comment below or email me at [email protected]

Why Businesses Should Not Ignore the Operation Varsity Blues Scandal

As a former compliance officer who is now an academic, I've been obsessed with the $25 million Varsity Blues college admissions scandal. Compliance officers are always looking for titillating stories for training and illustration purposes, and this one has it all-- bribery, Hollywood stars, a BigLaw partner, Instagram influencers, and big name schools. Over fifty people face charges or have already pled guilty, and the fallout will continue for some time. We've seen bribery in the university setting before but those cases concerned recruitment of actual athletes. 

Although Operation Varsity Blues concerns elite colleges, it provides a wake up call for all universities and an even better cautionary tale for businesses of all types that think of  bribery as something that happens overseas. As former Justice Department compliance counsel, Hui Chen, wrote, "bribery. . .  is not an act confined by geographies. Like most frauds, it is a product of motive, opportunity, and rationalization. Where there are power and benefits to be traded, there would be bribes." 

My former colleague and a rising star in the compliance world, AP Capaldo, has some great insights on the scandal in this podcast. I recommend that you listen to it, but if you don't have time, here are some questions that she would ask if doing a post mortem at the named universities. With some tweaks, compliance officers, legal counsel, and auditors for all businesses should consider: 

1) What kind of training does our staff receive? How often?

2) Does it address the issues that are likely to occur in our industry?

3) When was the last time we spot checked these areas for compliance ? In the context of the universities, were these scholarships or set asides within the scope of routine audits or any other internal controls or reviews?

4) What factors or aspects of the culture could contribute to a scandal like this? What are our red flags and blind spots? Do we have a cultural permissiveness that could lead to this? In the context of the implicated universities, who knew or had reason to know?

5) How can we do a values-based analysis? Do we need to rethink our values or put some teeth behind them?

6) How are our resources deployed?

7) Do we have fundamental gaps in our compliance program implementation? Are we too focused on one area or another?

8) Are integrity and hallmarks of compliant behavior part of our selection/hiring process?

Capaldo recommends that universities tap into their internal resources of law and ethics professors who can staff  multidisciplinary task forces to craft programs and curate cultures to ensure measurable improvements in compliance and a decrease in misconduct. I agree. I would add that as members of the law and business community and as alums of universities, we should ask our alma maters or employers whether they have considered these and other hard questions. Finally, as law and business professors, we should use this scandal in both the classroom and the faculty lounge to reinforce the importance of ethics, internal controls, compliance with law, and shared values.

 

How to Be A Happy Lawyer (Or At Least Less Miserable) in 2019.

 

 

It's the  start of a new year and a new semester. As Joan wrote earlier this week, we need to step back and take stock of our mental health. I'm the happiest lawyer I know and have been since I graduated from law school in 1992, but many lawyers and students aren't so lucky. In fact, I probably spend 25-35% of my time on campus calming students down. Some have normal anxiety that fades as they gain more confidence.  I often recommend that those students read Grit or at least listen to the Ted talk. Others tell me (without my asking) about addictions, clinical depression, and other information that I should not know about. I know enough to refer to them to help. Closer to home, my 22-year old son has lost several friends to suicide. Many of those friends went to the best high schools and colleges in the country and seemed to have bright futures. And as we know, the suicide rate for lawyers is climbing.

Thankfully, the American Bar Association has gathered a number of resources for law students here. Practicing lawyers can find valuable tools for lawyer well-being here and a podcast for lawyers in recovery here. Law students can access their own ABA wellness podcast here. To help keep my energy high, I listen to a lot of podcasts of all types. I’ve found that listening to wellness podcasts, meditating, and exercising instead of watching the news has had a dramatic impact on my health. I know for a fact that the wellness stuff works. Due to significant stressors as a caretaker, my blood pressure spiked to a clinically dangerous level last week. This week, with mindfulness exercises and other wellness activities, I was able to lower it to normal levels without my new medication having kicked in yet. This is a big deal for me because despite my professional happiness, I’ve been hospitalized twice in 14 months for medical conditions exacerbated by stress. Being calm and stress free is literally a matter of life and death for me. Some of the podcasts I listen to are probably too “woo woo” to post for this audience but if you’re interested, you can email me privately at [email protected]. I’ll keep your secret.

Mainstream lawyer/business wellness podcasts include:

The Happy Lawyer Project (“The Happy Lawyer Project is an inspirational podcast for young lawyers looking to find happiness in life with a law degree. Each episode provides you with the tips, advice, encouragement and inspiration you need to craft a life and career you love.")

The Resilient Lawyer (“Practical and actionable information you can use to be a better lawyer. The Resilient Lawyer podcast is inspired by those in the legal profession living with authenticity and courage. Each week, we share tools and strategies for finding more balance, joy, and satisfaction in your professional and personal life! You'll meet lawyers, entrepreneurs, mentors and teachers successfully bridging the gap between their personal and professional lives, connecting the dots between their mental, emotional, physical and spiritual selves.”)

Happy Lawyer, Happy Life ("A knowledge centre for lawyers who want to make the best of their life in and outside of the law.")

The Tim Ferris Show (“Each episode, I deconstruct world-class performers from eclectic areas (investing, sports, business, art, etc.) to extract the tactics, tools, and routines you can use.  This includes favorite books, morning routines, exercise habits, time-management tricks, and much more.”)

The Mindful Lawyer (it's no longer running, but my colleague Scott Rogers pioneered the field and these are short tracks.)

Dina Cataldo Soul Roadmap (“So, you’re a lawyer who doesn’t have it all figured out? Design the life you deserve. Stop killing yourself to achieve success and redefine it instead.”)

You may need more than a podcast to get you through whatever you're going through right now. If you, a student, a colleague, or family member needs immediate help, please get it. I’ve cut and pasted the resources below from our law school’s web page for students.

Key National Referral Services

Suicide Prevention

National Suicide Prevention Lifeline, 1-800-273-TALK (8255), National, Toll-Free, 24 Hours
Dave Nee Foundation, 646-801-7392
Law Lifeline, 1-800-273-TALK (8255)

Chemical Dependency and Self-Help Sites

Addition Recovery Resources for Professionals, 540-815-4214
Alcoholics Anonymous (AA), 212-870-3400
American Medical Association, 800-621-8335
Center for Substance Abuse Treatment (CSAT), 240-276-1660
Cocaine Anonymous (CA), 310-559-5833
CODA Drug Abuse Hotlines, 1-877-446-9087

Crystal Meth Anonymous (CMA), 213-488-4455
Dual Recovery Anonymous (DRA), 913-991-2703
International Lawyers in A.A. (ILAA), 944-566-9040
Marijuana Anonymous (MA), 800-766-6779
Narcotics Anonymous (NA), 818-773-9999
National Clearinghouse for Alcohol and Drug Information(SAMHSA), 1-877-SAMHSA (726-4727)
National Institute on Drug Abuse (NIDA), 301-443-1124
Nicotine Anonymous (NA), 415-750-0328

Compulsive Gambling

Debtors Anonymous (DA), 781-453-2743
Gamblers Anonymous (GA), 213-386-8789

Eating Disorders

Anorexia Nervosa & Associated (Eating) Disorders (ANAD), 630-577-1330
Overeaters Anonymous (OA), 505-891-2664

Family Support

Adult Children of Alcoholics (ACOA), 562-595-7831
Al-Anon/Alateen, 757-563-1600
Nar-Anon Family Groups, 310-534-8188
Co-Dependents Anonymous (CODA), 888-444-2359
Co-Dependents of Sex Addicts (COSA), 763-537-6904

Mental Health Sites

Anxiety Disorders Association of America (ADAA), 240-485-1001
Journal of General Psychiatry (JAMA), 1-800-262-2350
Children and Adults with Attention Deficit/Hyperactivity Disorder(CHADD), 1-800-233-4050
Depression and Bipolor Support Alliance (DBSA), 800-826-3632
Lawyers with Depression
National Alliance on Mental Illness (NAMI), 800-950-6264
National Institute of Mental Health (NIMH), 1-866-615-6464
National Mental Health Association (NMHA), 703-684-7722

Sexual Addiction and Compulsivity

Sex Addicts Anonymous (SAA), 800-477-8191
Sex & Love Addicts Anonymous (SLAA), 210-828-7900
Sexaholics Anonymous (SA) 615-370-6062

I'm sure that I've missed a number of resources. I just finished attending a wellness tea brunch at a French patisserie with fresh baked goods and champagne so I'm incredibly relaxed (#selfcare). If you have more resources to add, please feel free to comment below. Let’s make this the best year yet for our students and for ourselves. If I can ever be an ear for anyone, I’m always available.

 

How I Became (Semi) Literate About Distributed Ledger and Blockchain Technology

I knew it would be impossible. There was no way to relay my excitement about the potential of blockchain technology in a concise way to lawyers and law students last Friday at the Connecting the Threads symposium at the University of Tennessee School of Law. I didn't discuss cryptocurrency or Bitcoin other than to say that I wasn't planning to discuss it. Still, there wasn't nearly enough time for me to discuss all of the potential use cases. I did try to make it clear that it's not a fad if IBM has 1500 people working on it, BITA has hundreds of logistics and freight companies signed up to explore possibilities, and the World Bank, OECD, and United Nations have studies and pilot programs devoted to it. As a former supply chain person, compliance officer, and chief privacy officer, I'm giddy with excitement about everything related to distributed ledger technology other than cryptocurrency. You can see why when you read my law review article in a few months in Transactions.

I've watched over 100 YouTube videos (many of them crappy) and read dozens of articles. I go to Meetups and actually understand what the coders and developers are saying (most of the time). A few students and practitioners asked me how I learned about DLT/blockchain. First, see here, here, here, and here for my prior posts listing resources and making the case for learning the basics of the technology. What I list below adds to what I've posted in the past.

Here are some of the podcasts I listen to (there are others, of course):

1) The Decrypting Crypto Podcast 

2) Block that Chain

3) Block and Roll

4) Blockchain Innovation

Here are some of the videos that I watched (that I haven't already linked to in past posts):

1) Using Blockchains for Supply Chains

2) IBM and Maersk demo: Cross-border supply chain solution on blockchain

3) How to Activate a Blockchain with IBM (Demo)

4) Examples of Blockchain Changing Every Day Life

5) 19 Industries The Blockchain Will Disrupt

6) Vitalek Buterin Explains Ethereum

7) In Conversation with Vitalik Buterin, Justin Drake and Karl Floersch (Ethereum Foundation)

8) Fireside Chat With Vitalek Buterin

9) Blockchain and Food Safety With IBM and Walmart

10) Applying Blockchain Technology to Customs Declarations

11) Your 31st Human Right Guaranteed by Blockchain

12) How Blockchain Can Transform India

13) Blockchain, A Tool for Social Good

14) Blockchain for Social Impact

15) Bitcoin, Blockchain, and the Law

16) Blockchain and the Law: What Lawyers (And their Clients) Need to Know

17) Blockchain and the Law: The Rule of Code

18) The Blockchain: A Revolution You Need to Understand

19) Vitalik Buterin on Ethereum, Bitcoin, and Scaling

20) Exploring Blockchain Use Cases: Microsoft Azure

21) How the Blockchain is Changing Money and Business

22) Blockchain and Corporate Law

23) Blockchain Innovation in Law and Corporate Governance

24) Changing the Legal Game With Blockchain

25) Blockchain and Smart Contracts

26) Code is Not the Law: Blockchain and Artificial Intelligence

27) Linklaters Blockchain Legal & Regulation Panel

28) How Do You Square Blockchain with Privacy Laws

29) Jeff Jonas on GDPR and Integrating IBM Blockchain with Senzing at IBM Think 2018

30) CPDP 2018: BLOCKCHAIN AND DATA PROTECTION: CHALLENGES AND OPPORTUNITIES

31) John McAfee: about blockchain, bitcoins and cyber security

There are dozens more, but this should be enough to get you started. Remember, none of these videos or podcasts will get you rich from cryptocurrency. But they will help you become competent to know whether you can advise clients on these issues. 

 

Getting ready for the robot lawyers

Today I sat through a panel at the ABA International Law Section Meeting entitled, I, Robot - The Increasing Use and Misuse of Technology by In-House Legal Departments. I have already posted here about Ross and other programs. I thought I would share other vendors that in-house counsel are using according to one of the panelists: 

• Deal point - virtual deal room.
• Casetext - legal research.
• Disco AI; Relativity; Ringtail - apply machine learning to e-discovery.
• Ebrevia; Kira Systems; RAVN - contract organization and analysis.
• Julie Desk - AI "virtual assistant" for scheduling meetings.
• Law Geex - contract review software that catches clauses that are unusual, missing, or problematic.
• Legal Robot - start-up uses AI to translate legalese into plain English; flags anomalies; IDs potentially vague word choices.
• LexMachina - litigation analytics.
• NeotaLogic - client intake and early case assessment.
• Robot Review - compares patent claims with past applications to predict patent eligibility.
• Ross Intelligence - AI virtual attorney from IBM (Watson).

These and their future competitors lead to new challenges for lawyers, law professors, and bar associations. Will robots engage in the unauthorized practice of law? What are the ethical ramifications of using artificial intelligence in legal engagements? How much do you tell clients about how or what is doing their legal research? What about data security issues for this information? How do we deal with discovery disputes? Can robot lawyers mediate? Why should lawyers who bill by the hour want the efficiency of artificial intelligence and machine learning? Finally, how do we help students develop skills in “judgment” and how to advise and counsel clients in a world where more of the traditional legal tasks will be automated (and 23% of legal task already are)?  These are frightening and exciting times, but I look forward to the challenge of preparing the next generation of lawyers.

Law & Wellness: Interview with Gabe Azar (Sr. Patent Counsel at Johnson & Johnson)

Gabriel (“Gabe”) Azar and I graduated one year apart, from the same law school. He has an undergraduate degree in electrical engineering from Georgia Tech and started his legal career as an associate practicing patent law at Finnegan, Henderson, Farabow, Garrett & Dunner, LLP. He moved from Finnegan to Paul Hastings and from there to an in-house position with FIS. Currently, he is Senior Patent Counsel at Johnson & Johnson. I’ve admired, mostly from a distance (he lives in Jacksonville, FL now), how Gabe has balanced family, work, and health. We recently reconnected on Strava, and it has been inspiring to see a dedicated husband/father/attorney taking his fitness seriously.   

 

The interview is below the page break.

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