Why I love Twitter

https://twitter.com/DanClarkSports/status/1166704943824195584

Beneath the AOC Mask, Another Trump

It turns out that AOC, like Trump, is very intolerant of any Twitter expression that differs from her own views.  In fact, it has been noteworthy this past week how the two of them have been fighting on Twitter like a couple of little kids, displaying similar levels of intelligence and maturity.  I am starting to suspect some kind of Jekyll and Hyde secret potion may be at work here, and I will be increasingly vigilant for any media reports providing evidence that the two have ever appeared in public at the same place and time.

 https://www.msn.com/en-us/news/politics/ocasio-cortez-defends-blocking-people-on-twitter/ar-AAGwtf9?li=BBnb7Kz

Omar Threatened, or Jus' Smollettin'?

Coincidentally arising just when it might be a distraction from how much extramarital sex Omar might be buying with campaign funds, the "anonymous death threat" she dramatically revealed in the media is suspiciously reminiscent of the Jussie Smollett "anonymous death threat" gambit.  And, of course, similarly reminiscent of dozens of similar hoaxes setting up fake death threats cast as racist, anti-Muslim or anti-LGBTQ.  It has become a regular, leftist ploy to build status or gin up public sympathy for the person allegedly "threatened."

The tactic has simply been beaten to death.  Even if Omar were to throw in a "No, no, THIS TIME, FOR REAL," it is hard to see who would buy the claim pending some corroboration.  Personally, I am going to now assume each and every one of these moronic ploys is a manipulative hoax, unless and until the police actually catch a "threatener" that is not the person making the claim or somebody they have hired to help set it up.  Didn't fool me the first hundred times, and it won't fool me the hundred-and-first.

https://thehill.com/homenews/house/459243-omar-shares-anonymous-death-threat-speaks-out-against-hate-and-need-for

Brass Knuckles Are Legal In Texas--Finally

September 1 is the day that new laws take effect in the great state of Texas.  This year we've got some great ones.  Texans are FINALLY allowed to possess brass knuckles.  Actually, I think that this law is going to have minimal effect since the sort of person who would want to carry brass knuckles isn't likely to care if they're illegal.

Open carry of swords will also be legal.  Liberal idiots like JoePa are probably getting their panties in a wad about how terrible it will be for people to openly carry swords, Bowie knives, or that glowing dagger that Bilbo Baggins had, but I have a different take.

There's more, but I'll let esteemed Texas Bar member Brian "Law Hawk" Wilson explain it.

https://www.facebook.com/TexasLawHawk/videos/2714189261939028/

Are Men really punishing women for the whole MeToo thing?

I read an article (link below) analyzing some "fallout" from the MeToo movement.  As many of you know, Mike Pence (Vice President of the U.S.) refuses to have a one-on-one dinner with any woman who is not his wife.

The article analyzes some findings, and concludes that men are avoiding women at work, going so far as refusing to touch a woman in any way, including handshakes.  And a survey found that some men would consider not hiring a woman just to avoid the whole problem.  Of course, it's not just men, but women also show some bias against hiring women.

The author then notes that the survey shows that both men and women seem to know what constitutes harassment, so the only possible conclusion is that men are just being dicks to women as a way to punish women for the whole MeToo movement.

My take:  Personally, I don't go as far as our Vice President, but I also try to avoid situations that have even a small chance of an appearance of impropriety.  I don't think men (or at least not most of them) are "punishing" women for the MeToo movement (and I don't think that most women actually think that, either).  I think that men are simply responding rationally.  Even if men and women agree on what constitutes harassment, it's better to not even get close to the line, because if there is a disagreement, the man's career could be over.  That's pretty high stakes for no real benefit.

Like I tell my kids when we go hiking, you won't fall into the river / fall off the cliff if you stay a safe distance away.  Sure, you're probably fine most of the time if you get really close, but if you want to make sure you're safe, you won't even get near the edge.

In conclusion, men just can't win.  I mean, I think we all agree that harassment is wrong, and some of the more extreme examples in the MeToo movement are absolutely unacceptable, but to say on the one hand that men are all pervs and harrassers, and then when men move the other way, they become prudes, misogynists, and "overreactors," I'm just not sure what a man's supposed to do? 

Disqus.  Or Blogger.  Not the same ring to it.

Also, women of the commentariat, please share your voices so I can better understand your position.  Being for real about that.  My wife has some interesting stories about male superiors, though most of them boil down to the guy being an a$$hole regardless of the gender of his underlings.


(https://www.theguardian.com/lifeandstyle/2019/aug/29/men-women-workplace-study-harassment-harvard-metoo)

The Hon James V. Selena bench slapps Avenatti

https://docdro.id/nWCxmQQ

First, a bit of background for those of you who have not been following the legal spectacle that is Michael Avenatti closely.

Avenatti is now facing  two related California Bar Court proceedings on, respectively, the State Bar's petition to place Avenatti on "involuntary inactive enrollment" (not eligible to practice law) pending a merits resolution of the Bar's petition to disbar Avenatti for 13 alleged rule violations relating to his former client Gregory Barella, based on written testimony showing that Avenatti: (1) provided Barella with an altered settlement agreement; (2) failed to notify Barella for a year of his receipt of a $1.6M settlement installment; (3) misappropriated from the client trust account Barela's $840,000 share of the settlement; (4) repeatedly lied to Barella about the status of the settlement in aid of concealing his misappropriation.

Avenatti sought, and received a 45 day continuance of the Bar Court trial on the petition for inactive enrollment (to late September), claiming he has been denied access to his Egan Avenatti law firm servers containing the client files for Barella (and the four other clients that the US Attorney's Office for the CDCA has charged Avenatti for embezzling a total of $9M from), and cannot properly defend himself from the Bar and criminal charges until he obtains them.

Avenatti similarly filed a motion to abate the substantive disbarment matter until a final judgment is issued in the CDCA criminal matter.

Avenatti also pointed out that the discovery issue would be resolved by the Judge presiding over the CDCA criminal matter (James V. Selena) when when judge Selena ruled on Avenatti's motion for "unfettered, unsupervised access" everything on EA's servers "relating to the entirety of Avenatti's law practice and business dealings".

And boy did Judge Selena rule.

It is plain from Avenatti’s own description of the content of the Subject Devices that the majority of the content is irrelevant to this case. …[par.] Whatever rights Avenatti may have as managing partner of EA LLP or as attorney to keep copies the firm’s books and records, they do not expand the Government’s obligations under Rule 16.

In addition to the Government’s obligation to produce in accordance with Rule 16, Avenatti has two other avenues to review the material on the Subject Devices. First, the Government has offered to allow Avenatti to inspect its forensic copies of the Subject Devices at the IRC-CI’s offices to allow him to identify relevant information. … Second, the Receiver has offered to allow Avenatti to review the Subject Devices under the Receiver’s supervision and with the payment of associated costs.

There are alternatives, and Avenatti has chosen not to avail himself of either offer  Unfettered access is simply a different turn of phrase to conduct a fishing expedition through the Government’s subpoenaed materials.

 Ouch!

In a footnote, Judge Selena also reminds Avenatti that things are run a little differently in criminal court:

What may be appropriate and required in the context of civil discovery does not translate to criminal discovery.

The significance of Judge Selena's ruling resonates beyond the discovery issue in the CDCA criminal proceeding because it eliminates Avenatti's ground for seeking continuances of not only the criminal matters pending in CDCA and in the SDNY (where Avenatti is also seeking access  to seized devices) but in the two Bar matters as well.

Avenatti is currently facing a trial on extortion charges in the SDNY in November, a trial on the 36 count criminal indictment in the CDCA in May, 2020, and a trial of the State Bar petition for involuntary inactive enrollment in September of this year.

OUTRAGE Over Expulsion of Lebanese Harvard Admittee

Admitted to the infamous Harvard-of-the-very-fine-bathrooms, but, alas, not to the United States.  Our crafty border agents discovered, upon searching his social media accounts, that he had not unfriended some of his foreign pals who had included anti-US political diatribes in their shared social media posts.  Suddenly it was all "Do not pass Logan Airport; go directly back to Lebanon," and back to Lebanon he went.  Guilt by association?  Maybe he should have thought to have some Israeli friends post some Zionist diatribes for "balance"?  In any event, Harvard cannot contain its disappointment, and the outrage is reportedly mounting (no word as yet on whether Harvard outrage can actually ride or shoot, and I am somewhat skeptical on both counts).

https://news.yahoo.com/outrage-mounts-over-harvard-student-turned-back-at-airport-after-cell-phone-search-222753962.html

Felony Charges Filed Against Suspected Cereal Killer

The theory advanced by the prosecutor in Genessee County, Michigan, is that when a hit man scheme failed, Jason T. Harris did the job himself by spiking his wife's cereal and milk with heroin.  If they can bring in the proof, Harris is looking at a possibility of three felony convictions, which could leave him in the pokey for life. (A fitting recompense if he indeed fed his spouse a snap, crackle, poppy bowl of delicious sugared smack).

https://www.cnn.com/2019/08/28/us/michigan-heroin-cereal-death-trnd/index.html

Outrage, as Lowe's Exec Refers to Hispanics Having "Smaller Hands"

One of the great things about our times is that there is some kind of "outrage" declared on the Internet every day.  Today, we have this video where a Lowe's exec is telling these sales helots they should be able to sell a lot of these power tools, which should fit well in the "smaller hands of Hispanic pros."  WTF?  Are we talking Ted Cruz/Donald Trump "hands" here?  It must be something, because it's a media-declared "outrage," at least, apparently, for "employees."  Is it only Lowe's employees who suffer from "hand" envy?  I'm kind of hoping tomorrow's "outrage" will be a little easier to sort out.

https://www.msn.com/en-us/money/companies/lowes-executives-comment-about-hispanic-pros-with-smaller-hands-sparks-employee-outrage/ar-AAGp1sS?li=BBnbfcL

ADA Access Lawsuit Summary

In a prior thread, I suggested that I might consider voting for President Trump's reelection if he (among other things) accomplished a significant rollback of the private right of action under the ADA.  This resulted in a bit of criticism and questioning of what I have against disabled people.

I have nothing against the disabled, but it is not the normal disabled folks who file ADA lawsuits.  As I mentioned in the other thread, I subscribe to a service which provides me a daily summary of all new litigation filed in the Southern Division of the Central District of California (basically Orange County) and the Orange County Superior Court.  I'll go back to August 1 and list the plaintiffs who have filed disability cases (either under the ADA or our state equivalent) as well as the law firms representing them and the type of business they sued:

The Needs of the Many outweigh the needs of the Few: Gotham Edition

We all know that meritocracy is racyist. And that inequality breeds contempt.  Presidential candidate and part-time mayor Bill DeBlasio has a solution.

https://gothamist.com/news/de-blasios-school-diversity-group-eliminate-gifted-and-talented-programs

Alleged NYC Prostitute Charged for Death That Mattered

It's New York, you know.  Maybe police believe a deadly spice lady has been dropping Johns for a month (or God actually knows how long) in the Big Apple, but things heat up when the head chef goes missing from Cipriani Dolci.  They heat up even more when the cops call on the lady, only to find a foot sticking out of a garbage can, as the incense in the room fails to quite cover the stench of the decaying corpse, and it turns out to be the corpse of said head chef from Cipriani Dolci.

Now that's a problem.  Not like (apparently) the death of Jean-Alessandro Silvero, or that other dead guy from July, whatever his name was.  Doesn't matter.  Neither one of those guys was the head chef at Cipriani Dolci.  But Andrea Zamperoni, he was.  He was the head chef at Cipriani Dolci, and New York's finest can't abide that.  It was officially time to put down the donuts, and finally do their jobs.

https://nypost.com/2019/08/26/prostitute-charged-in-death-of-cipriani-dolci-head-chef-andrea-zamperoni/

In Story Surrounding "First Space Crime," Love Didn't Win

Time was when I remarked from the peanut gallery that same-sex couples would not find same-sex marriage the panacea they imagined.  Indeed, there were other, better and more precise ways to craft the rights intended for a relationship without formal marriage.  With the "marriage" alternative, of course, the law gratuitously supplies a bundle of rights and obligations, whether or not the participants want (or even understand) them.  Also, of course, the marriage relationship confers expansive jurisdiction on the domestic court when things go south.  Temporary orders typically put one spouse out of the home, while bitter disputes over division of marital property and custody issues become the province of the court, often for a period of many years.

Here we have one such instance.  The marriage lasted only about four years, and now the once-happy couple can't seem to get along.  But it was a marriage, and "self-help" alternatives are limited by those "law" thingies, and the powers of the courts.  Just doing whatever one pleases, even from orbit, may not pass muster (and, as illustrated here, may even give rise to criminal issues).  How fortunate for these two that evolving norms and fortuitous Supreme Court rulings enabled them to enter into their legal marital relationship.

Welcome to Hell, ladies.  Enjoy your "rights."

https://nypost.com/2019/08/26/nasa-astronauts-estranged-wife-speaks-out-about-space-crime-allegation/

LGBT Group Kicked Out of Las Perlas "Like Trash"

In another outrage among the many, daily outrages in the City of Angels, a group of various gender nonconformists with Bienestar Human Services complained of being kicked out of the Las Perlas restaurant "like trash."  The group of eight claimed that they were accosted and threatened by an inebriated couple.  Then, as a result of the disturbance, the culpable duo were allegedly escorted off the premises in a courteous fashion, while the Bienestar group, by contrast, were boorishly tranhandled by the bouncers and forcibly ejected.  There is video, and Los Angeles police are currently investigating  the outrage.  Meanwhile, "protesters" have sought to hold Las Perlas management accountable for this grave breach of protocol.  This decay of basic civility in Los Angelenos culture is nothing less than shocking.

https://www.washingtonpost.com/dc-md-va/2019/08/25/transgender-women-say-they-were-ones-harassed-bar-bouncers-dragged-them-out/

Ogg Stands by Her Oath; Harding Street Massacre Charged as Felony Murder

Some people probably remember how this case first hit the media as a woeful tale of officers injured while shooting it out with a couple of ne'er-do-weels pushing "black tar heroin."  But, as the facts began to bubble out, it developed that no such substances were recovered after the occupants of the stormed residence were gunned down.  Indeed, when pressed to identify the alleged "confidential informant" whose information was the supposed basis of the no-knock warrant, Officer Goines, the officer (now retired) who told that story could not come up with any actual confidential informant who would back him up.

When parties outside the Houston Police Department (e.g., media and the Harris County DA) started looking at prior, similar warrants obtained by Officer Goines (who also had an impressive history of civil suits against him), they saw a troubling pattern.  Indeed, it was a pattern that probably should have been noticed by the Houston PD (and indeed, by the Harris County DA) a long time ago.

Making up for past dereliction, DA Kim Ogg stepped up to the plate today, and brought the felony murder charges, as the evidence so far discovered seems to show that Goines, for whatever reason, completely made up facts to obtain a no-knock warrant, storm a private residence, and kill the occupants.  As a Giglio-forced corollary of the pattern of questionable conduct now tied to Goines, charges have had to be pitched, and convictions based on cases he wrote up will all have to be reviewed.  It is a train wreck of the highest magnitude.

https://www.msn.com/en-us/news/crime/former-houston-cop-gerald-goines-charged-with-murder-in-harding-street-raid/ar-AAGeHUn

Friday Afternoon Discussion - How Can A Politician You Detest Earn Your Vote?

Let's play a game.

Pick a politician currently in power who you loathe (not necessarily Trump, it could be Feinstein, Schumer, AOC, Talib, McConnell, etc.) and, as of right now, would not vote for under any circumstances (assuming that you lived in an area where you could vote for him or her).  Assume that whomever you picked has the cooperation of the executive and legislative branches and a narrow ideological majority on the Supreme Court (basically put him/her into Trump's position pre-2019).  What could that reprehensible politician accomplish with this power that would make you vote for their reelection?  It must be presently possible (e.g., no "give me a jetpack that emits gold instead of exhaust) and at least arguably constitutional.

Believe Drejka, Or The Video?

In the infamous handicap-parking activist/shooter case, Drejka, the defendant, may have a substantial problem in that his statement to the police does not match the handy video from the security cameras.

Also, this looks to leave him with some trouble as to the elements of his self-defense claim, because the video shows the unarmed decedent stepping back, not "running at" Drejka as Drejka had claimed.  Of course, his lawyer doesn't want the jury to see Drejka as dishonest, so he plans to argue that this was Drejka's "honest recollection," though shown by the video to not be what actually happened.

I don't think this argument gets Drejka out of the woods, because misremembering the facts after he fatally shot somebody does not establish the elements for self-defense.  Even if Drejka takes the stand and testifies that he honestly but delusionally perceived the decedent to be "running at" him when he fired, that isn't going to ring the bell unless the jury concludes that such a belief, contrary to the actual facts shown by the video, was "reasonable."  Also, the jury may be inclined to dislike Drejka because he basically picked a fight over a parking dispute in order to shoot somebody, and he has an established prior pattern of setting up similar incidents.  They may well conclude that it is just better to get him off the street, and they have at their disposal a ready means to achieve this. 

https://www.msn.com/en-us/news/us/stand-your-ground-trial-defendant-said-markeis-mcglockton-ran-at-him-despite-video/ar-AAGbr7z

Forensic Data Collection in Dallas

Dear members of the Texas chapter:

I have a client with an office in the Dallas area who is in need of a data collection vendor to create forensic copies of a few hard drives for litigation preservation purposes.  Not surprisingly, I haven't had the occasion to hire such a service in Dallas before.  Billy/Pol Pot/anyone else in the northeast part of the Lone Star State, any recommendations?


P.S. It feels really odd using this forum for actual, legitimate professional purposes. 

Privacy Notice

Just wanted to let you know that, as a result of our relocation to Blogger from Disqus, some of the mod functions and options have changed.  One substantive change that you all need to know is that mods can now see the email domain you used to create your Disqus account (i.e. "@gmail.com").  For example:

(I used FC as an example because he provided his burner email in a public thread).

For the time being, everyone appears to be posting from a burner account (with the exception of one esteemed member of the Commenteriat who has never sought anonymity).  I just wanted to pass this information along for the future and to shield those of you who, like me, value our anonymity.

P.S. - What's the deal with the Russian burner email, comrade (you know who you are)?

Avenatti’s Lawyers Have Expansive View of Litigation Privilege

Apparently it applies to good old fashioned extortion, if you are an attorney.

https://www.law.com/newyorklawjournal/2019/08/19/avenatti-argues-litigation-privilege-bars-prosecution-on-nike-extortion-charges/?kw=Avenatti%20Argues%20Litigation%20Privilege%20Bars%20Prosecution%20on%20Nike%20Extortion%20Charges&utm_source=email&utm_medium=enl&utm_campaign=breakingnews&utm_content=20190819&utm_term=nylj&slreturn=20190719171211

Is it Time to Rework the Bar Exam?

I think most of us here are in agreement that, of all the AtL columnists over the years, Kyle McEntee is among the more credible.  He's got a new column on AtL today discussing some pretty harsh internal criticism of the Bar Exam by the National Conference of Bar Examiners (i.e. the group responsible for the MPRE, the multiple-choice section of the Bar Exam, and the essays and performance exams used in the Uniform Bar Exam).  Among the critiques are:

• The exam tests both too much and too little. That is, it should emphasize more lawyering skills and less subject matter knowledge. 

• The exam should utilize more writing, less multiple-choice, and additional methods like simulation.

• Jurisdictions should consider breaking the exam into different parts over more than just a few days.

• “The MEE is the least valuable component of the bar exam because it is not realistic: it requires answering short essays based upon memorization of the law, which is not consistent with how lawyers practice (e.g., with access to electronic databases like Westlaw or LexisNexis).

• The inconsistent passing scores implemented across states raise questions about the legitimacy of exam results; states need to agree on a definition of minimum competence.

• “The MBE tests arcane, obscure, or trivial aspects of the law that new practitioners should not be expected to know and are not reflective of minimum competence; the MBE tests too deeply on subjects; memorizing black-letter law for the MBE to answer multiple-choice questions (MCQs) does not mimic real practice because lawyers would look up the law and not rely only on memory in representing clients; too much focus on memorization; the MBE tests only memorization and no skills; the MBE questions are full of red herrings and intentionally tricky”

• “MCQs are not realistic or an effective way to test what lawyers do; if retaining MCQs for the MBE, reduce the number of questions or increase the amount of time allowed”

I agree with all of the above, especially the questions concerning the utility of the multiple-choice Multistate Bar Exam.  It's been more than twelve years since I sat for the Bar, but I recall the questions and subject matter were oddly focused on areas of the law that few practitioners need to know (i.e. tests for religious displays on public property, prayer in schools, the rule against perpetuities, and adverse possession).

That said, I disagree with the implication that a fast-paced, timed multiple choice test has no place in the Bar Exam because there are a few topics that attorneys do need to know off the top of their head and do not have the opportunity to research.  Specifically, I'm thinking of the rules of evidence (and, yes, I'm aware that this applies only to trial attorneys).  When in trial, a competent attorney must have a command of the rules of evidence.  You don't get a recess to research the applicable rules of evidence and rework your questions if the opposing attorney makes a valid objection.  Similarly, you need to know the rules yourself to keep the other side in check.  Objections not timely asserted at trial are waived for purposes of appeal, so there is literally no time to consult a rule book.  Unless and until we break out a law license into "trial attorneys" and "non-trial attorneys," a minimally-competent attorney must understand the evidence code.

Commenteriat, how do you feel about the MBE and how would you improve the Bar Exam?

Elie Mystal: I’m not a racist, You’re racist!!!

Elie’s latest installment in the “look at the silly white racyists” starts, strangely.  Apparently, he went on TV and said some things:

Last Friday, I went on All-In with Chris Hayes to discuss billionaire Stephen Ross decision’s to hold a fundraiser for racist President Donald Trump. On air, I said, “I have no problem shining the light back on the donors who fund this kind of racialized hate. I mean, I go further. I want pitchforks and torches outside this man’s house in the Hamptons. I’ve been to the Hamptons, it’s very nice. There’s no reason it has to be. There’s no reason he should be able to have a nice little party. There’s no reason why people shouldn’t be able to be outside of his house and making their voices peacefully understood.” 

I stand by that, but I borked the structure a little. In my head, I wanted to go: “shine a light” –> “peacefully understood” –> “torches” –> “f**k the Hamptons.” The “torches” were supposed to parallel the “light” and the Hamptons bit was supposed to be the punchline. Same thoughts, same words, different order. These people who support Trump are racist assholes and I wanted to make the point that disagreeing with them peacefully doesn’t require disagreeing with them “nicely.” But structurally, the way it read in my mind versus the way it came out on air is the difference between getting screamed at by white people versus getting screamed at by white people with guns. 

If you think that came off as racist, you are wrong.  In fact that makes you racist: “The way I phrased it allowed the alt-right to take the first part and ignore the second part, with predictable results.”  See?  Racist.  Don’t think this has to do with race?  Read on:

Of course, I’m not in the business of actually caring about these people, so on Sunday on Joy Reid, I said this: 

You don’t communicate it to them — you beat them. Beat them. They are not a majority of this country. The majority of white people in this country are not a majority of the country. And all the people who are not fooled by this need to come together, go to the polls, go to the protests, do whatever you have to do. You do not negotiate with these people — you destroy them.

Got it, crackers?

https://abovethelaw.com/2019/08/hate-mail-dump-from-trump-supporters/

Dinosaur Lady Waxes Nonsensical. In Other News, Sun Still Rises In East

Jill Switzer, AtL columnist, self-proclaimed dinosaur, and proud graduate of a law school so bad it committed seppuku, has awonderful new think piece over at Glawker discussing why younger lawyers either are or should (it's quite murky) ditch biglaw for a "boutique."

First, the term "boutique" gets thrown around quite a bit but has no specific meaning.  To me, the term connotes a smaller firm focused on one or two specialized niches.  Partners are usually former biglaw specialists or government lawyers who put in serious time in the trenches and associates are usually brought in laterally from big firms rather than being hired in as first years.  Boutiques, as I understand the term, provide top-notch legal services in their narrow field of expertise at lower (although not dramatically lower) hourly rates than biglaw firms.

Switzer uses the term to refer to small or mid-size firms as if the legal world is split into a dichotomy of biglaw and boutiques (and maybe solos).

I've spent time working for a solo (who, technically, wasn't a solo once she hired me), a small firm (10 lawyers), a huge firm (1,000+ lawyers), and now a mid-size firm (40ish lawyers).  With this backround, Switzer's reasons why one should eschew biglaw for a "boutique" ring false and, as is usual for AtL, will likely create some unrealistic expectations for AtL's readership.  Let's dive in.

Question: When you have a firm of thousands of lawyers, how do you avoid client conflicts when there are lawyers all over the world handling all sorts of different transactions, different litigation, different regulatory issues? Is it ever possible to have a clean conflict check? Your client is your client and you don’t want to relinquish that work because a partner (and not a PINO) in another part of the country or somewhere else in the world outranks you and you lose the work. What is your client’s reaction? Your client knows you are a “partner.” Yes, but….

Well, Jill, there's these funny boxes called "computers" that can be pretty good at storing data.  Big firms make big money and can justify purchasing pretty advanced computer systems and even hire consultants to create their own conflict check systems based on existing software platforms.  Most large firms have their own in-house IT departments overseen by a competent CIO who will implement a conflict check system.  At my last firm (with 1,000+ lawyers spread across 40 or so offices nationwide), we sent in a new matter memo to our ... wait for it ... conflicts department.  The conflicts department would run the names against the database it maintains and then return a "conflicts report" to the originating attorney within an hour or so.  The conflicts report listed, among other things, all prior matters where we represented or opposed any party on the conflicts memo, as well as the matter number and billing partner on the file.  It also provided this same information for clients/opposing parties with similar names.  Once the originating attorney gets the conflict report, he or she can reach out to the billing partner on any possible conflicting matters to discuss the issue and determine if a conflict existed.  If a close call, the firm's own General Counsel would make the call.

Believe it or not, big firms like making money and they put into place sophisticated systems to avoid the embarrassment and financial sting of either being ordered to disgorge or morally compelled to refund fees charged for representing conflicting interests.

There is also an "emerging" (only if you're old as shit) body of law in the context of megafirm conflicts.  The long and short of it is that, even if the firm has a conflict, the firm can still ethically represent the client if appropriate measures are taken to lock attorneys out of access to a former client's confidential information (aka a "Chinese Wall" or, in PC jurisdictions, an "ethical wall").

Next up:

Why make the switch? Boutiques provide the experience that newer lawyers crave and cannot get in Biglaw — there are opportunities to do both paid and pro bono work, and in these smaller firms, the associates often drive the pro bono work. In boutiques, they not only do the depo prep but they take the deposition. There’s a partner by your side at the depo, but you’re taking it, not the partner. You go to court with a partner and argue the motion, but you are arguing, not the partner. All three of the lawyers said making the switch gave them the opportunity to get “boots on the ground” experience, rather than just observing others. They are doing, not watching.

Bullshit.  The "opportunity" to do pro-bono work depends on: (1) what you do; and (2) whether your firm's ownership wants to do it.  If you work at a boutique focusing on representing companies trying to go public, there's not a goddamned thing you have to offer to a pro bono client.  Similarly, if the owner of your firm likes money more than poor people, he's not going to be cool with forgoing a significant amount in billings so that you can buy some deadbeat another month in their apartment because the landlord forgot to file form A-665-103 along with the eviction complaint.

The part about getting practical experience with a partner hovering around?  That's a case-by-case basis and is by no means universal.  I've seen it done.  I've been both the associate and the partner in the scenario, but it's very uncommon.  You know why?  Clients don't appreciate paying for two attorneys to do what one can do.  Either the associate or the partner has to write the time off.  Guess who's time usually gets written off - that's right - the one with the lower rate (the associate).  If this happens too often, the associate runs into a billing deficit and has to work nights and weekends to make up for the lost time.

Next:

Benefits play a part as well in the decisions to switch — availability of both childcare and elder care, flexible schedules, to name just a few.

Nope.  Bigger firms - and this is a shocker - have more attorneys.  They are better suited to absorb the workload of an absent attorney.  Also, big firms have better benefits.  Know why?  More people.  Bigger firms have more sophisticated payroll departments and can efficiently offer and administer benefits like group disability plans, group life insurance plans, flexible (health and dependent care) spending accounts, and other cafeteria plans.  Smaller firms can't match the rates that larger firms can get for some of these group insurance plans and smaller firms don't have entire departments of people to implement them by making appropriate payroll deductions and paying the correct amounts to the benefit providers.

Next up:

It’s easier to have a voice in a smaller firm, and, as one lawyer noted, it’s harder to get buy-in for a project, an idea for associate development, across a ginormous firm. It’s also easier for newer lawyers in a boutique firm to build business, to be entrepreneurial, because the firm can be flexible, especially when representing startups and billings can be deferred. Smaller firms are nimbler in what they’re willing to do to get their associates up and running, to help them succeed.

It's way harder for an associate at some unknown firm to build business.  You're servicing the partners' clients and that's about it.  Your business card, reading "Bumbleshit & Grootfinger, Associate" neither opens doors nor impresses the average consumer.  Bigger firms, especially insurance defense ones (like Lewis Brisbois or Wilson Elser) actually provide a good opportunity for business development for associates.  Insureds get free lawyers without having a say, you work the file, and if you do a good job, there's a good chance the insured client comes back to you if they need legal services in the future.

Also, the "voice" issue depends on ownership.  Ironically, I felt I had the loudest voice as an associate when I worked in biglaw.  The small firm I worked at previously was run by a freaking dictator who would sooner stab your dog than listen to any business ideas.

Finally:

And implicit in what all three lawyers said is the collegiality that a boutique law firm can provide. Yes, we all became lawyers to do good and, as a collateral benefit, to have a comfortable lifestyle. We knew we were all in this together. At least, we were. Not so much any longer.

Again, this depends on who you work for.  My office of the biglaw firm was generally pretty nice.  The small firm was not.  It's possible to work in a laid back office of a big firm with nice people.  It's also possible to work for Idi Amin in a suit in a small shop.  The variable is the personalities of the humans with whom you work, not the number of humans employed by your employer.

In closing: Jill the dinosaur should shut the hell up and turn into crude oil already.

Jones Day at it Again (Courtesy of IP-Law-Ass)

IP-Law-Ass pointed out on a recent thread that Jones Day is the subject of a salacious, new claim. Posted verbatim from his comment on CC's earlier post, The Update (ATL, take note. We can steal from comments and cross-reference our own content too):

Some mod should start a thread on the new complaint against Jones Day — lots of juicy details on their appellate group. Written by some very preftigiouf plaintiffs (see below), and they drop some sweet shade along the way (like mentioning oh by the way, Jones Day attempted to litigate and take out the FMLA, but failed).

Complaint:

https://static.reuters.com/resources/media/editorial/20190814/savignacvjonesday--complaint.pdf

Julia Sheketoff and Mark Savignac, the married plaintiff couple.

Her: NYU '10 grad; EDNY clerk; clerk for Justice Breyer (you may have heard of a little court called the SUPREME COURT?).

Him: HLS '11; NDIL, 7th Circuit, and Breyer clerk.

Breakdown of some highlights:

https://threadreaderapp.com/thread/1161714881931952129.html

The Update

This is being written at the request of our own Prodigal Judas, PE.  In exchange for the promise of what hopes to be an interesting take on the Epstein/Clinton murdercide connection, I'm answering some questions he raised in an earlier thread.

1.  What happened to JoePa?

He's still an idiot and, assuming he can find the right orifice, appears to be on track to making idiot babies with everyone's favorite progressive muppet, KKRR.  Good luck enjoying a meal with that image going through your head.

2.  What happened to Elie Mystal?

You recall those nutjobs who wear aluminum foil hats to stop the government from reading their thoughts?  Elie's turned into whatever the version of that is for people who believe that everything down to tapwater is racist and out to get him.  Elie's gone further toward madness and fancies himself an armchair Colonel in his own imaginary war against raceism, bigotry, xenophobia, and all those other scary abstracts that are his omnipresent oppressors.  If he had the ability to stand and fire a weapon, he'd be one of the first to be red-flagged.

3.  David Lat.

He's now a recruiter (which confirms my impression formed by interacting with recruiters that they have about as much knowledge of the legal profession as our receptionist), but still drops turds on AtL occasionally.  His most recent offering is a link to a paywalled WSJ article (good to know some things never change) bemoaning the existence of non-equity partnership and some Shannon-esque noncommittal commentary on the subject.  What I found particularly terrible about the article (which discusses equity vs. non-equity partnership in Kirkland & Ellis) seems to suggest to all the wide-eyed budding ambulance chasers and consumer bankruptcy slaves reading AtL that $800,000 per year (apparently the average K&E non-equity partner pay) is a "decent" wage for an attorney.  The vast majority of his readership will be lucky to make 20% of that in their best year.  We all know better yet, without comments, nobody is there to let AtL's readership know that this is some world's smallest violin griping.

4.  Bonus - Shannon Unmasked

Shannon Achimalsdikjalo'sdk finally came out - as a middle-aged male Asian tax lawyer from Los Angeles named Steven Chung.  Chung would occasionally drop in at the Commune to ... say stuff.  Points for honestly, I guess, but he's still a second-rate Keith Lee.

Commenteriat, anything to add?

Move Along, Nothing To See Here

Well, that was the corporate line at LeClair Ryan (no relation) until last week.  Now, there is something to see.  Namely a massive crater where the firm's COBRA obligations used to be.

Law360 lays out the nitty gritty here (https://www.law360.com/articles/1186656).

Question to the commune - what makes your firm different from LeClair Ryan (no relation)?  And in what ways is it similar?  Would you know the door was about to hit you in the backside well enough in advance that you could do something about it?

I'm particularly thinking about the dude they lured to start a practice back in May of 2018.  He said that for a year he knew nothing of the financial trouble (that was plastered all over the news for anyone to see).

Sick Daze

As I'm currently dealing with one of those medical issues that's disproportionately disruptive relative to its severity, i thought it might be a good time to talk about sick time.

My firm has unlimited sick time, but for extended absences they prefer that you work out a leave of some sort.

It's great because you don't have to worry about getting pay docked, and super helpful when there is a kid in school picking up all sorts of germs.

But the billable hour clock keeps ticking and there's work that needs to be done,  and the older partners need to be assured of adequate face time.

What say you all?

Equinox in the news again

It is now time to be angry at Equinox.

The owner of the luxury gym, Stephen Ross, is under fire from liberals -- who, it turns out, compose a large number of its members -- for holding a fundraiser in the Hamptons today for President Trump.

Celebrities, well-heeled Millennials, and others are calling for a boycott of Equinox, as well as of SoulCycle, another Ross-owned enterprise. No word yet on whether the Miami Dolphins, of which Ross is chairman, face similar pariahdom, other than that of not advancing to a Super Bowl in over three decades.

But with Equinox's turn toward the dark side comes an opportunity -- to finally expose Trump in an environment in which he feels no one will be recording him! Perhaps there is someone out there who's willing to surreptitiously take photos of strangers in private settings.

Do we know anyone like that?

If It Seems Too Good To Be True - or - You Get What You Pay For

In a story that one would expect to have originated from Florida (but didn't), a porn "star," who goes by the nom d'enculer Lynn Pleasant pled guilty to hiring a hitman to kill the father of her children.  While this is not necessarily noteworthy, the agreed-upon price for commission of a capital felony struck me as a bit low: $5,000.

It seems that we get one of these stories every couple years.  Some would-be kingpin busted for hiring who they believe to be a professional killer for the equivalent of a used ten-year-old pickup truck. 

When it comes to hiring a professional killer, maybe don't follow the contract awarding policies of a municipal government and fork over a few extra ducats for someone who is not:  (a) an informant; or (b) so addled that they are willing to risk life behind bars or capital punishment for $5k.

Here's a picture of the charming Ms. Pleasant, since I know you all want to see:

New Digs

Looks like we're all going to have to take a bit of time up get used to our new environs.  Good thing Disqus helpfully gave us a whole month to adapt before dropping the ban hammer.

In that vein, let's talk about office moves.  How do you handle moving to a new office (same firm or different)? Does your firm handle all the logistics? How do you like to keep your office decorated/ personalized?

Asking for a guy who's moving down the hall.

Disqus. Errr, let's chat.

Twenty women accuse CA appellate justice of inapporpriate remarks, touching; he calls it a “whisper campaign”

What to call a Commission on Judicial Performance trial seeking to defrock a setting justice? "Witch-hunt seems, well, counterproductive. So “whisper campaign” it is.

A lawyer for a Los Angeles-based state appeals court justice told a panel of judges Monday that sexual harassment charges against him stemmed from a “whisper campaign” in court hallways fueled in part by a female judge who enjoyed being at the center of attention.

During the first day of formal proceedings against 2nd District Court of Appeal Justice Jeffrey H. Johnson, his lawyer suggested Johnson was the victim of malicious gossip and that some of his accusers, including Justice Victoria Chaney, were not credible.

Chaney, who serves on the 2nd District Court with Johnson, has accused him of sexually harassing her for years, grabbing one of her breasts, patting her bottom and repeatedly asking her to have an affair with him. She and Johnson were appointed by former Gov. Arnold Schwarzenegger. 

Unfortunately for Justice Johnson, there are no shortage of character witnesses - and not the good kind.

The state’s first witness, Roberta Burnette, a private lawyer, testified that she met Johnson at the Jonathan Club in 2015 at a dinner sponsored by the Assn. of Business Trial Lawyers.

While they were seated alone at a table toward the end of the night, “he said to me, you know you are very voluptuous,” she testified. She tried to brush off the remark and changed the subject.

As their conversation continued, he eventually asked her to perform one sexual act on him, then another, she testified.

I like an appellate judge who gets right to the point, don't you?

Read more sexy details, here.

Free Speech At Last!

As many of you are aware, our prior home on the Disqus Chanel forced certain moderation on us that even the Ubermod was unable to change.  Now that our glorious unnamed leader has started this forum, I'm pleased to report that there are (as of now) no "bad words" that will automatically require mods to approve a comment, so go on and use the words you feel like using.

What I did find funny is the set of suggested filtering terms provided by Disqus:

5h1t, 5hit, a55, anal, anus, ar5e, arrse, arse, ass, asses, assfukka, asshole.*, b!tch, b00bs, b17ch, b1tch, ballsack, bastard, beastial.*, bestial.*, bi+ch, biatch, bitch.*, blow job, blowjob, blowjobs, bollock, bollok, boner, bukkake, buceta, butthole, buttmunch, buttplug, c0ck, c0cksucker, carpet muncher, chink, cl1t, clit, cock, cock-sucker, cockface, cockhead, cockmunch.*, cocks, cocksuck.*, cocksuka, cocksukka, cok, cokmuncher, coksucka, coon, cox, cum, cummer, cumming, cums, cumshot, cunilingus, cunillingus, cunnilingus, cunt, cuntlick.*, cunts, cyalis, cyberfuc, d1ck, dick, dickhead, dirsa, dlck, donkeypunch.*, doosh, duche, dyke, ejaculat.*, ejakulate, f u c k, f u c k e r, fag, fagging, faggitt, faggot, faggs, fagot, fagots, fags, fatass, fcuker, fcuking, feck, fecker, felch.*, fellate, fellatio, flange, fleshflute, fook, fooker, .*fuck.*, fudge packer, fudgepacker, fuk, fuker, fukker, fukkin, fuks, fukwhit, fukwit, fux, fux0r, f_u_c_k, gangbang.*, gaylord, gaysex, goatse, hardcoresex, heshe, hoar, hoare, homo, horniest, horny, hotsex, jack-off, jackoff, jap, jerk-off, jizz, kike, knob, knobead, knobed, knobend, knobhead, knobjocky, kondum, kondums, kum, kummer, kumming, kums, kunilingus, m0f0, m0fo, m45terbate, ma5terb8, ma5terbate, masochist, master-bate, masterb8, masterbat.*, mo-fo, mof0, mofo, muff, mutha, muthafecker, nazi, nigga, niggah, niggas, niggaz, nigger, niggers, nob, nob jokey, nobhead, nobjocky, nobjokey, numbnuts, nutsack, orgasim, orgasims, orgasm, orgasms, p0rn, phonesex, phuck, phuk, phuked, phuking, phukked, phukking, phuks, phuq, pimpis, poop, porn, porno, pornography, pornos, prick, pricks, pube, pusse, pussi, pussies, pussy, pussys, rectum, retard, rimjaw, rimming, sadist, schlong, screwing, scroat, scrote, scrotum, semen, sex, sh!+, sh!t, sh1t, shemale, shi+, shit, shitdick, shite, shithead, shiting, shitings, shits, shitted, shitter.*, shitting.*, shitty, skank.*, slut, sluts, smegma, smut, snatch, son-of-a-bitch, spic, spunk, s_h_i_t, t1tt1e5, t1tties, tit, tits, titt, tittie5, titties, tittywank, titwank, tosser, tw4t, twat, twathead, twatty, twunt.*, v14gra, viagra, wank.*, whoar, .*whore.*, willies, xrated, xxx

I'm particularly puzzled by the suggestion to premoderate misspellings of benign words (i.e. "cyalis") where the correct spelling is not flagged.  Also, WTF is "pimpis"?

One more observation, while this list seems overinclusive, it leaves out two of Carlin's seven dirty words (to wit: piss and motherfucker).

So, welcome in and go on and get down with your filthy fucking self, Pimpis!

Banished Again

Once again, the erudite membership of the Commenteriat Commune have proven too much for mere peons to handle. First, ATL. Now, Disqus.

Here's to hoping Google can handle us.

Housekeeping: email Harvetta with your burner Gmail account at commenteriatcommune@gmail.com and you can be added as a blogger too. Be sure to tell me something only you would know to authenticate your identity - bank account numbers in particular are welcome. Otherwise you can continue to use your Disqus account to comment without interruption.