IMS Insights Podcast: Episode 18-Tips From the “Hot Seat” for Remote Hearings and Court Events Amid the Pandemic

In this episode of the IMS Insights Podcast, we speak with trial presentation advisor Jeff Dahm about his perspective as a hot seat operator and his role during the COVID-19 pandemic.

Teresa Barber: So, Jeff, tell me, we’re in a really interesting time and you mentioned this just a couple of moments ago that so many people are in very new environments. We’re having very high stakes meetings and events but in a totally virtual environment and you were talking about other folks in the industry who have those hot seat trial presentation skills for attorneys, for clients, what should they be … I mean are there things that a traditional trial presentation consultant could do right now that can help attorneys feel a little more confident, a little more prepared when they’re going into those virtual meetings, virtual events?

Jeff Dahm: Sure, sure. Trial presentation consultants are quite familiar with the way the video conferencing software works. Call them up, have them assist you in the video conferencing platform. Have them help you make sure that everything works. Schedule a Zoom meeting with your trial presentation consultant to run through a program, make sure it looks good on the other end. Hire them, send them the PowerPoint, run the PowerPoint and you watch it click through, so you can see what the client … What the judge is going to see, what the other opposing counsel is going to see. Just like in a war room, you do run throughs, run throughs and run throughs but good attorneys that know what it’s about, practice because they look effortless in court because they practice and you should do the same thing with your consultant if you have an online hearing. Practice.

Dahm: I mean you would need to practice in person, you’re going to want to practice with an online hearing. It’s very important. So, they can help you with that. Make sure that if you want to show something in OnCue or Trial Director, make sure that the documents come up right. Make sure the video looks good. If you have to show video clips in your hearing, the trial presentation consultant can help you edit those clips, get them together, organize them. I mean there’s a lot of stuff that happens in trial that’s technical that doesn’t actually happen in the trial. It happens before the trial and you still have those things that are going to have to happen and the trial presentation consultant can help you with those.

Barber: Nice. Yeah, interesting. Yeah, and I would imagine, let’s say we’re in a virtual environment or a virtual hearing that stuff is very visible, right? If there’s a glitch in something.

Dahm: Yeah, you’ve got to be smooth. There’s little things like when you press … When you start the PowerPoint, that you don’t have the speaker view on the screen, you have to switch. I mean there’s a seamless operation that a good trial tech does in court and the same seamless operation can happen in the online hearing and it’s the same sort of method to keep things running smooth just like you do in a courtroom.

Barber: Yup, very interesting. So, without disclosing anything confidential, you’ve had a very lengthy career, Jeff, a lot of interesting trials, a lot of interesting moments. Without disclosing anything confidential, could you share maybe a moment where you would be especially proud of what you were able to contribute and the outcomes that you were able to bring?

Dahm: Sure, sure. So, I would say, I think about all of these years I’ve been doing this and the moments that stand out and for me, in a court … I mean I have some pretty dramatic, crazy things that have happened but the most effective and the most jaw dropping moments are when you impeach a witness on the stand and when you play a video clip that shows that they contradicted themself on the video, that is truly one of the most effective moments in a trial to win. You have an expert witness up there who’s very cocky, who thinks they know everything and thinks they read their deposition and has everything right and they put their story wrong together and as a trial presentation consultant, I have these video clips, impeachment clips lined up, ready to go and for me, it’s the most important part of my job and I instill this in all of my trial techs is that you need to make sure you bring up that impeachment clip fast in order for the effectiveness of it and it’s crucial.

Dahm: If a witness is on the stand and they say X and I have a video clip that says Y and my client asks for it, boom, it’s got to come up in seconds to get the effective … And if you do that, you really do have the best chance of discrediting a witness you really want to. I mean it’s not pleasant always, it’s a little uncomfortable at times but it’s the most effective moment in a trial, I believe.

Dahm: I also have a couple of random little stories of things that have happened to me.

Barber: Yeah, I was going to ask you, 23 years sitting in court, in trials, you’ve spent more time in courtrooms than most attorneys would have, and you’ve got to have some stories. Are there any moments that standout to you?

Dahm: There are a couple of them here. So, I was involved in this case in like 2001, 2002, early on in my career. It was a dog mauling in San Francisco, and there was a woman who was mauled. It was a terrible, terrible story and we worked with the district attorney’s office to help prosecute these people that have these dogs and so I was in the courtroom. The trial was on Court TV. It was like a big case and then the defense counsel gets up and she stands up and she gets on the floor and starts barking like a dog, in the middle of the courtroom, and the whole place is like going crazy barking like a dog. Okay, so I do my presentation and my mother was watching at home and I talked to her afterwards and she said, “Now, I finally understand what you do for a living.” She couldn’t get it before.

Dahm: I’m like, “Yeah, I go into court, help display evidence.” But she saw me on TV. She saw the attorney barking like a dog and she’s like, “Now, I kind of get what you do.”

Barber: Oh, my goodness.

Dahm: Another big moment for me was I did a trial for a Pueblo in New Mexico to try and get land back from the government under aboriginal Indian title. It was a truly amazing case and it was incredible and one of the witnesses was one of the medicine men from the Pueblo and he got up on the stand and he led the whole entire congregation in the courtroom in a prayer and they were all in a chanting prayer and it was so overwhelmingly amazing and beautiful and I couldn’t believe that I got to be a part of this, sitting in a federal courtroom. It was pretty amazing. And at the end of that trial, they gave me a piece of pottery that they make, the Pueblo makes this pottery, and it’s truly one of my most prized possessions. It was just a fantastic trial. I really enjoyed it.

Barber: Sounds like some moments definitely stay with you.Dahm: Yeah, yeah, but you get the big moments like you get to go to some event. I sat … You get court side at a game as like a thank you, like flying on a plane. You end up in these crazy moments in this job that you don’t even expect and you’re like oh my gosh, this is really happening. I’m just the trial tech but trial tech is a very important part of the whole process, so it’s just been a great 25 years for me. It’s been really good.

Barber: Yeah. It sounds really interesting and I have to say too, you’re working with really impressive attorneys too quite a bit and how clients certainly have to have shaped your mindset, your approach to everything. What role have clients played in how your career’s developed?

Dahm: Yeah, so I started early on in my career working with a firm, Keker, Van Nest & Peters, and they were … I got in on some cases early on and I started working with the whole firm and just there … Seeing their work ethic and their passion for their job and they were all just dynamic people who were so effective in a courtroom and fun people, fun people to be around and so great at their jobs and I saw this early on in my career and I was like I want to be like this.

Dahm: So, I sort of modeled my work ethic and my career path based on the way that this firm has done their work and it’s been a really, really great experience for me working with them and also just learning so much about just the law and being in court and working on a team and working effectively on a team. I mean these are some values that I learned from them that I really, really take that from every part of my life. It’s been really, really great for me. So, I thank them immensely for what they’ve done for me.

Barber: That kind of mindset too makes it a little more … I mean it makes it fun, right? You kind of get that back when you put it into your work.

Dahm: Yeah. It’s been fantastic, yeah.

Barber: We were talking a moment ago about nearly 25 years in the industry working in trials, working as a trial presentation consultant, you’ve seen a lot of trials and certainly, that truth makes it over to clients, to attorneys. Do you ever have clients who stop you during trial or kind of pull you to the side and want your opinion? How does that work?

Dahm: I find that the clients that ask my opinion and the clients that want to know what the trial tech thinks are the clients that tend to win. I mean you have this invaluable resource sitting right there in the courtroom that has sat through a lot of trials. I mean let’s say … I mean I’ve sat through hundreds of them because I’ve been doing this for 25 years but even somebody who’s only done it 10 years, five years, they still have more experience than most attorneys in a courtroom. I wrote an article a few years ago about view from the hot seat, showing what the hot seat operator, the five most important things that a hot seat operator can tell a client to win and I tell you, I stand by those.

Dahm: It’s just you get so much just from sitting in a courtroom and I pay attention. I mean I follow the cases. I mean you have to if you’re going to be helping bringing up evidence because when they turn around and say can you bring up the statute, they don’t always say exhibit 55, you have to know what the statute is. So and they do ask my opinion and I give my opinion quite candidly whenever I am asked because it doesn’t help anybody to not tell the truth in these situations so I just tell it like it is, say you’re not going to win that argument, you need to try this different and they really do appreciate it and then a few clients, it turns into like a half an hour session at the end of every single day of court, “Okay, Jeff, what about this client? What about this witness? What happened here? What do you think with this judge? What about this ruling?” And I give my opinion and trust me, I have them.

Barber: Like a debrief?

Dahm: Yeah, that’s exactly. You sit in court 25 years, you have an opinion on everything that happens in that courtroom and it tends to run … Cases tend to run similar, even though the details are different but the cases generally run at the same flow so I could help with that. I help with the flow. I help with the cadence. I help with the message and making sure they’re getting a clean, simple, effective message to the jury and that’s how you win.

Barber: Right, which yeah, great way to boil it down to the fundamentals too. That’s an interesting segue here because there are attorneys who feel that they’ve kind of got the bases covered. That they have a paralegal who’s really talented who may be able to be the hot seat operator at their trial. Is that an effective strategy most of the time from what you’ve seen?

Dahm: So, no. Well, I shouldn’t say no overall because if you have a case that has 50 exhibits, small case, not much going on in the case, two or three day case and you don’t have any depo, I don’t see any reason why a good paralegal that you trust could run the show. Those are not the cases for trial presentation consultants as much. You have a big case, you have a heavy load, you have a lot of video depositions, you have multiple things to handle, then you’re going to want to have a trial presentation consultant in there because your paralegal’s going to have a lot to do too in a heavy evidence case. They’re going to have a lot of copying, a lot of binders, a lot of things to submit to the court, I mean filings. I mean there’s just so much for the paralegal to do and you can also …

Dahm: The trial presentation consultant becomes a part of your team, so there’s another person that goes in the whole collective group and if the case can afford it, you should always do it because you will find at the end of it that you were like wow, that was amazing because you have this sort of … This like nirvana that happens in court when you call out exhibits and they come on the screen. I’ve heard clients talk about this nirvana and they say it’s like you’re reading my mind but that’s just a good trial tech doing the good job in the courtroom and the paralegal is focused on being a paralegal. All we’re focused on is bringing the stuff up in court and bringing it up fast and effectively and that is hard to do. It may seem easy but it’s not.

Barber: Yeah, and I was going to say it sounds like there’s a level of kind of perspective and expertise that comes to that. You cannot put that kind of responsibility on a paralegal to bring all of that depth of experience of being in … Like you said, you’ve had hundreds of trials, that perspective adds a level of what should really build confidence in the client to be able to trust, to be able to say, “Okay, I’m going to focus on the strategy. I’m going to focus on telling that story and then lean on the expertise and the perspective of Jeff or my trial presentation consultant who’s here with me.”

Dahm: Yeah, it is a luxury. I mean it can be a luxury if you don’t have the means but if you do have the means, it’s a necessity because it makes your case run smoother and you … Everything that gets on that screen, I mean just think about this, every single thing you put on the screen is so important. It is so important to the end result of the case, what goes on that screen and someone who has the experience to put it on the screen in an effective manner is going to make you win your case. I mean it’s just that simple. I mean not always but it definitely helps. If jurors can see the way it looks and it looks pretty and it looks good and it’s easy to adopt, they’re going to adopt it.

Barber: Mm-hmm (affirmative).

Dahm: So, it’s interesting.

Barber: What I want to ask you too, we’re starting to see some courts reopening but even … And businesses reopening and some restrictions kind of easing related to the pandemic but even with a lot of restrictions lifting and some courts starting to move forward with physical schedules, we’re going to have people who aren’t able to travel. So, when we think about witnesses, we’re going to see witnesses unable to travel. How do you think courts are going to handle that and what advice would you have for attorneys right now?

Dahm: Sure. So, I’ve dealt with this issue for years. I’ve dealt with it at least a few times a year for years and so what happens is you have a witness that can’t travel and they want to remotely testify and so they call me and they say how can we have a witness testify remote? So, I go through the whole thing, explaining how we can put … Have a camera where they’re at, you have a camera in the courtroom … You put the signal into a projector in the courtroom. You can display the person live and you can put documents next to it. So, I have figured out logistics to get this done and then almost every single time, when they propose it to the judge, the judge says no, they have to testify, they have to come or you play a deposition. That’s going to change.

Dahm: So, now, all this preparation that I have done over the years to figure out how to get a live feed in the courtroom and how to show exhibits while it’s going on the screen, all that work is done. I have it ready to go. So, if a client calls me and they need to have a witness testify remote, we are ready to go.

Barber: Yeah, definitely interesting. It certainly makes you wonder how much of the historical cultural hesitance we’ve had about virtual versus in-person that I think COVID, if nothing else, may be wearing some of that down.

Dahm: And with all the testing I’ve done, with all the software, I’ve tested OnCue, I’ve tested Trial Director, I’ve tested PowerPoint. I’ve tested anything you would want to just use to display in a courtroom and it all works online. It all works in the virtual hearing and you should be using it because the case is just as important even though you’re not there. We could have a witness testifying remote. I mean there’s really no limits, I don’t think, at this point. With all of our years of using video conferencing software in my industry and then now we have to apply it to trial tech and trial presentation, bring it on because we are ready to go.

Barber: Yeah, very interesting, Jeff.

Dahm: It’s exciting too. It’s really exciting for me too because it’s like I have such a passion for trial presentation and then to be able to do it in a new method, in a new platform, in a new way is just so exciting because it’s like I feel very comfortable online and I know my techs do too, feel very comfortable in the Zoom meeting or a Skype call. I can share screens, switch back and forth, I mean it’s not hard for me because that’s what I’ve done in the courtroom for 25 years. So, I’m really excited to be able to do all of this stuff and I’m sitting at home now. It’s just, it’s great for me. So just got to have people realize that it is as important as it was.

Barber: Yeah, and reach out for help, right? Because I think not everyone shares your sense of comfort with it and I think that it’s just kind of interesting to make those connections that I think there are attorneys who could use some help right now just to get that confidence in this weird new normal of the remote world.

Barber: So, Jeff, it’s been really interesting having you on today. Wonderful to hear your really interesting perspective about the current situation and also just learn as little bit more about what you’re bringing to the table and your background.

Dahm: Great, yeah. Thanks for having me, Teresa. Yeah, this has been really fascinating. I just love explaining how trial presentation works and what we can do and it’s just … As I said, it’s my passion and I just enjoy talking about it, so I could talk about it with you for another couple of hours. It’s just …

Barber: Well, we may take you up on that, Jeff. So, we’ll have you back sometime soon. So thank you. I really appreciate it. Thanks, Jeff.

Dahm: Thanks, Teresa.

© Copyright 2002-2020 IMS ExpertServices, All Rights Reserved.
ARTICLE BY IMS ExpertServices.
For more on trials amid the pandemic, see the National Law Review Litigation / Trial Practice section.

Former JUUL Employee Seeks Injunction Against Pre-Employment NDA

On June 4, 2020, a former employee of electronic cigarette maker JUUL Labs, Inc., filed a complaint in California District Court seeking to enjoin JUUL’s enforcement of a non-disclosure agreement (“NDA”) she was required to sign as a condition of her employment. The former employee, Marcie Hamilton, alleges in her complaint that JUUL required her to sign an NDA prohibiting her from disclosing “essentially, everything related to JUUL” (emphasis in original) prior to beginning her employment. She further alleges that the “terrorizing effect” of the NDA, which JUUL requires all of its employees to sign prior to beginning their employment, unlawfully precludes employees from “blowing the whistle” to government or law enforcement agencies about suspected illegal activity, in violation of California law.

As alleged in the complaint, the JUUL NDA requires employees to “hold in strictest confidence” and not disclose, among other things, JUUL’s customers, products, markets, and any “information disclosed by the Company to [the employee] and information developed or learned by [the employee] during the course of employment.”  Employees are prohibited from disclosing such information to “any person, firm, or corporation, without written authorization from the Company’s Board of Directors.”  Having no temporal limit, the prohibition “lasts forever.”  According to the complaint, JUUL relies on these NDAs to prevent employees from providing relevant information in ongoing government investigations, as well as administrative and judicial actions, into the use of JUUL’s products by minors and the health dangers of its products, more broadly.

Ms. Hamilton alleges that the NDA’s prohibition on disclosing seemingly any information about JUUL whatsoever to any entity whatsoever violates California Labor Code § 1102.5(a). Section 1102.5(a) prohibits employers from making, adopting, or enforcing a rule, regulation, or policy that “prevent[s] an employee from disclosing information to a government or law enforcement agency,” or to “any public body conducting an investigation, hearing, or inquiry,” if the employee reasonably believes the information discloses a violation of law. Ms. Hamilton also alleges that the NDA violates California Government Code § 12964.5. Section 12964.5 was enacted in response to the #MeToo movement and prohibits employers from requiring employees to sign any document that “purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.”  Ms. Hamilton alleges that in violating these and other California statutes, the NDA has caused “ongoing and irreparable public harm.”  In her lawsuit, she seeks a finding that the NDA is unenforceable and an order enjoining JUUL from attempting to enforce it against her, as well as other forms of relief.

Employers’ Use of NDAs to Intimidate and Muzzle Employees

Unfortunately, NDAs like the one JUUL requires employees to sign as conditions of their employment are not uncommon. To the contrary: large corporations – and powerful individuals – often require employees to sign similar NDAs as conditions of their employment in an effort to stymy competition, insulate themselves from prosecution, and even protect themselves from public embarrassment. As Ms. Hamilton points out in her complaint, former Hollywood producer and convicted rapist Harvey Weinstein used similar pre-employment NDAs to prevent victims of his sexual abuse from reporting it to law enforcement. See Edward Helmore, “Harvey Weinstein lawsuit: attorney general says ‘we have never seen anything as despicable,’” (February 12, 2018).

Disgraced restauranteur Mike Isabella likewise used draconian NDAs to prevent his employees from reporting sexual harassment in his restaurants, including by prohibiting employees from disclosing any “details of the personal and business lives of Mike Isabella, his family member, friends, business associates and dealings” – seemingly without any employment-related purpose whatsoever. In that case, an employee’s breach of the NDA carried with it an unconscionably high penalty of $500,000 per breach, plus attorneys’ fees expended by the company as a result of the breach. See Maura Judkis and Time Carman, “Mike Isabella’s restaurants used nondisclosure agreements to silence sexual harassment accounts, lawsuit alleges.” (April 3, 2018).

Not all states have statues like California’s, which expressly prohibit employers from restricting employees’ ability to disclose information about suspected violations of law to government or law enforcement agencies. But many states nevertheless uphold a clear public policy against doing so. If you signed an NDA as a condition of your employment and want to blow the whistle about any type of illegal conduct by your employer, consider consulting with an employment attorney to determine whether the agreement prohibits you from providing information about violations of law to government or law enforcement agencies and, if so, whether it may be unenforceable.

©Katz, Marshall & Banks, LLP

For more on non-disclosure agreements, see the National Law Review Labor & Employment law section.

June 2020 New Jersey State Regulatory Developments

Here are the most recent health care related regulatory developments as published in the New Jersey Register in June 2020:

  • On June 1, 2020, at 52 N.J.R. 1150(a), the Department of Health Commissioner issued a notice of rule waiver/modification/suspension pursuant to Executive Order No. 103 (2020) related to the qualifications an administrator of an assisted living residence or comprehensive personal care home.  This waiver was issued to ensure that a sufficient number of qualified administrators are available to staff New Jersey’s assisted living facilities and comprehensive personal care homes so that the facilities can effectively address the increasing number of both staff and residents being diagnosed with or suspected of having COVID-19.  Section 8:36-3.2 has been temporarily amended to permit individuals whose Assisted Living Administration certification had become inactive within the past three years (April 1, 2017-April 1, 2020) to restore their licenses provided that they have not been disqualified, is not under an investigation by the ALA panel or other state licensing authority, does not have a suspended, revoked or restricted certification and no failed a criminal background check.  If these bars have been cleared, then the applicant must complete a 10 hour Temporary Living Administrator Program sponsored by Longtree & Associates, LLC; successfully pass a criminal background check pursuant to N.J.A.C. 8:43I-4; and pay the current Assisted Living Administrator certification fee.

This temporary rule waiver/modification, as well as any provisional certifications issued thereunder, will expire 45 days after the end of the Public Health Emergency declared by Governor Philip D. Murphy in Executive Order No. 103 (2020). After the provisional certifications issued under this subsection have expired, individuals whose Assisted Living Administrator certifications have expired will no longer be permitted to function as certified assisted living administrators. Individuals wishing to obtain full certification as an assisted living administrator will be required to successfully complete all the requirements for restoration of such certifications set forth in this section (excluding the new subsection).

  • On June 1, 2020, at 52 N.J.R. 1151(a), the Department of Health Commissioner issued a notice of rule wavier modification/suspension pursuant to Executive Order No. 103 (2020) related to the time period within which a certified medication aide candidate must sit for the medication aide exam after completing his or her medication aide training course. Pursuant to this rule waiver/modification, if a candidate’s deadline to sit for the standardized examination falls between March 1, 2020 and May 31, 2020, then the candidate shall have an additional six (6) months from the original deadline to sit for the examination. For example, if a candidate was required to sit for the examination by March 1, 2020, the deadline will be extended to August 31, 2020. The remaining provisions set forth in N.J.A.C. 8:36-9.2 shall remain in effect.

N.J.A.C. 8:36-9.2(c) requires a certified medication aide candidate to sit for the Department of Health approved standardized examination within six (6) months of successfully completing an approved medication administration training course. The standardized examinations are administered by PSI Testing Centers. In an effort to protect the community from the spread of COVID-19, PSI Testing Centers are closed and no longer administering standardized examinations. As a result, medication aide candidates that successfully completed the approved training course are not able to sit for the standardized examination within the specified time frame. Accordingly, an extension of the time period that certified medication aide candidates have to sit for the exam is warranted so that the candidates do not have to unnecessarily retake the training course to qualify for the exam and gain certification after the public health emergency concludes.

  • On June 1, 2020, at 52 N.J.R. 1151(b) the Department of Health Commissioner issued a notice of rule wavier modification/suspension pursuant to Executive Order No. 103 (2020) regarding nurse aid competency.  N.J.A.C. 8:39-43.1 sets forth certain criteria for an individual to qualify to work as a Certified Nurse Aide (CNA) in a licensed long-term care facility in New Jersey. In order to increase the number of direct care staff available to work at long-term care facilities, the Department is modifying the requirements of N.J.A.C. 8:39-43.1. Pursuant to this rule waiver/modification, Personal Care Assistants (PCA) and Certified Medical Assistants (CMA) are temporarily permitted to function in the role of a CNA in licensed long-term care facilities within New Jersey so long as the PCA or CMA meet the following conditions: (1) the CMA or PCA must complete the Temporary Nurse Aide training course at  http://educate.ahcancal.org/products/temporary-nurse-aide  prior to functioning as a CNA; (2) the facility shall provide staff a basic orientation addressing fire safety, infection control, and abuse prevention prior to allowing them to perform any duties in the facility; and (3) the facility shall maintain relevant supervision requirements for CMAs and PCAs functioning as CNAs. The remaining provisions set forth in N.J.A.C. 8:39-43.1 shall remain in effect.

Long- term care facilities that take action under the terms of this waiver/modification must also provide a written report to the Department regarding the facility’s implementation. This waiver is effective only during the period of Public Health Emergency declared by Governor Philip D. Murphy in Executive Order Nos. 103 and 119. Within 45 days after the Public Health Emergency has ended, PCAs and CMAs will no longer be permitted to function in the role of a CNA and anyone wishing to act as a CNA will be required to satisfy the competency requirements set forth in N.J.A.C. 8:39-43.1. Long- term care facilities will also be required to resume operating in accordance with all licensure standards within 45 days after the Public Health Emergency has ended.

  • On June 1, 2020 at 52 NJ.R. 1154(a) the Department of Health Commissioner issued a notice of rule wavier modification/suspension pursuant to Executive Order No. 103 (2020) related to recertification of EMTs whose certifications have expired. Pursuant to this rule waiver and modification, individuals whose EMT certification expired within the past five years (April 1, 2015 to April 1, 2020) are eligible for “COVID-19 EMT re-entry” so long as: (1) the applicant is not currently under investigation by any State EMT licensing authority; (2) the applicant does not have a proposed or final enforcement action pending or entered against him or her by any State EMT licensing authority; (3) the applicant is not excluded from acting as an EMT pursuant to a settlement reached with any State EMT licensing authority; (4) the applicant has not been cited for impersonating an EMT and/or Paramedic; (5) the applicant does not have a criminal history or pending criminal charges referenced in N.J.A.C. 8:40A-10.2; and (6) the applicant successfully completed all continuing education audits conducted by the Department while certified as an EMT. If an applicant does not fall into one of these disqualification categories, the applicant may proceed with the “COVID-19 EMT re-entry” process that is outlined in the regulations.  Upon successful completion of these requirements, the Department will issue the applicant a 6-month provisional EMT certification. To obtain full certification as an EMT, the applicant must successfully complete a New Jersey approved refresher program and achieve a passing score on the National Registry EMT-Basic Certification Examination, as set forth in N.J.A.C. 8:40A-7.6, by the end of the provisional period.  Individuals issued provisional certifications under this waiver shall only provide services as an EMT in a limited capacity as specified in the regulations.
  • On June 1, 2020, at 52 N.J.R. 1156(a) the Department of Health Commissioner issued a notice of rule wavier modification/suspension of N.J.A.C. 8:41A-4.3, which set forth the requirements necessary for individuals to restore their paramedic certifications from inactive status to active status, pursuant to Executive Order No. 103 (2020).  Pursuant to this rule waiver and modification, individuals whose EMT-Paramedic certification was placed into inactive status within the past five years (April 15, 2015 to April 15, 2020) are eligible for the “COVID-19 EMT-Paramedic Re-Entry” so long as: (1) the applicant is not currently under investigation by any State EMT-Paramedic licensing authority; (2) the applicant does not have a proposed or final enforcement action pending or entered against him or her by any State EMT-Paramedic licensing authority; (3) the applicant is not excluded from acting as an EMT-Paramedic pursuant to a settlement reached with any State EMT-Paramedic licensing authority; (4) the applicant has not been cited for impersonating an EMT and/or EMT-Paramedic; (5) the applicant does not have a criminal history or pending criminal charges referenced in N.J.A.C. 8:41A-5.2; and (6) the applicant successfully completed all continuing education audits conducted by the Department’s Office of Emergency Medical Services (OEMS) while certified as an EMT-Paramedic and/or EMT. If an applicant does not fall into one of these disqualifying categories, then the applicant may proceed with the “COVID-19 EMT-Paramedic Re-Entry” process.  In a 2 person crew of a Mobile Intensive Care Unit, only 1 of the 2 people may possess a 6 month provisional/modified status.
  • On June 15, 2020 at 52 N.J.R. 1240(a), the Office of the Governor issued Executive Order 145 (2020) allowing elective surgeries and invasive procedures to resume on May 26, 2020.
  • On June 15, 2020 at 52 N.J.R. 1251(a), the Department of Health Commissioner issued a notice of rule wavier modification/suspension of N.J.A.C. 8:43G-31.11 regarding the maintenance of respiratory care equipment in hospitals, pursuant to Executive Order No. 103 (2020).  The waiver is effective during the period of the Public Health Emergency declared in Executive Order No. 103 and expires forty-five (45) days after the Public Health Emergency has ended.

Pursuant to this temporary rule waiver/modification, hospitals shall perform a mechanical and electrical function test on a ventilator released from State storage or from the federal stockpile prior to placing it into service and using it for the first time. The ventilator mechanical and electrical equipment function test shall consist of the following: performance of standard preoperational checks as recommended by the manufacturer; performance of a power-on self-test; and running the ventilator for a minimum of 15 minutes. Upon successful completion of the test, the hospital shall affix a sticker indicating the date that the ventilator passed the test. Hospitals shall create and maintain records showing that each State storage or federal stockpile ventilator placed into service met these requirements prior to being placed into service.

Hospitals that take action under the terms of this waiver must also provide a written report to the Department detailing the number of ventilators placed into service and any adverse outcomes attributable to these actions.  Upon the expiration of this temporary rule waiver/modification, hospitals will be required to resume operating in accordance with all licensure standards and perform the required equipment checks and maintenance. The remaining provisions set forth in N.J.A.C. 8:43G-31.11 shall remain in effect.

  • On June 15, 2020, at 52 N.J.R. 1251(b) the Department of Health Commissioner issued a notice of rule wavier modification/suspension of N.J.A.C. 10:161B-11.10, which would permit individuals receiving opioid treatment services to receive medication that they can take at home, pursuant to Executive Order No. 103 (2020).  In order to ensure the clients of OTPs have access to needed medications, the Department is waiving the requirements of N.J.A.C. 10:161B-11.10 and permitting facilities to provide medication to clients at locations other than the location listed on their OTP facility license, in accordance with the guidance issued by the Drug Enforcement Agency (DEA078) on April 7, 2020. The intent of the guidance is to provide OTPs greater flexibility in the delivery of take-home doses of methadone to their patients. OTPs must still adhere to certain standards. Specifically, before using the unregistered off-site location, the OTP must first contact its State Opioid Treatment Authority (SOTA) and receive the SOTA’s approval to use the offsite location. Additionally, the OTP must receive approval from the local DEA field office. Once the SOTA approves the location, it should contact the local DEA field office. If the SOTA does not contact the DEA field office, the OTP must contact the field office itself. The facility must submit the approvals received from the SOTA and the DEA field office to the Department. Each day, the facility may only transport those take-home methadone doses to the off-site location that the facility reasonably anticipates will be delivered to clients that day. The facility cannot transport a reserve of methadone to the off-site location. Any methadone not delivered to clients at the off-site location must be returned to the facility’s DEA-registered location the same day. No methadone may be stored at the off-site location when a facility staff member is not present

All OTPs that take action under the terms of N.J.A.C. 10:161B-11.10 shall provide a written report to the Department detailing the extent to which the facility implemented the terms of this waiver/modification and any adverse outcomes attributable to such implementation. OTPs may operate under the terms of this waiver/modification as necessary until the conclusion of the public health emergency declared by Governor Philip D. Murphy in Executive Order Nos. 103. Upon the conclusion of the public health emergency, OTP facilities will be required to resume determining eligibility for take-home medication under the criteria set forth in N.J.A.C. 10:161B-11.10(a).

  • On June 15, 2020, at 52 N.J.R. 1253(a) the Department of Human Services Commissioner issued a notice of rule waiver modification/suspension of certain rules at N.J.A.C. 10:51-1.25(j)(3), N.J.A.C.10:167A-1.27(j)(4) and N.J.A.C. 10:167C-1.25(j)(3), which require signatures by Medicaid/NJ FamilyCare, Pharmaceutical Assistance to the Aged and Disabled (PAAD) and Senior Gold beneficiaries at the time a prescription is dispensed or delivered. During the public health emergency, beneficiaries of these programs will no longer be required to provide signatures at the time a prescription is dispensed or delivered. The pharmacist must document in the patient’s profile the date the beneficiary received the prescription.
  • On June 15, 2020, at 52 N.J.R. 1287(a), the Department of Health Commissioner issued a public notice announcing the cancellation of the call for certificate of need (CN) applications for new home health agencies in accordance with the provisions of N.J.A.C. 8:42 and N.J.S.A. 26:2H-1 et seq. In accordance with N.J.A.C. 8:33-4.1(a), the next scheduled call for new home agencies will be July 1, 2022. The Department will continue to monitor the utilization and availability of home health services and, should the need arise, issue a future call for these services prior to July 1, 2022.
  • On June 15, 2020, at 52 N.J.R. 1287(b), the Department of Health Commissioner issued a public notice of postponement of  the certificate of need call for applications for home health care services in accordance with the provisions of N.J.A.C. 8:33 and N.J.S.A. 26:2H-1 et seq., scheduled for July 1, 2019, is hereby postponed.  The Department is in the process of gathering and evaluating data to determine whether there is currently a need for home health care services. Accordingly, it is necessary to delay the call for home health care services to allow the Department sufficient time to complete its evaluation of need, and to provide potential applicants and affected parties sufficient time to respond appropriately to a certificate of need call notice in the event the Department determines that a call is appropriate. If the Department proceeds with the call, then a call for home health care services will be published in an upcoming publication of the New Jersey Register, providing the necessary time for both potential applicants and interested parties to respond to the call notice. In the alternative, if the determination is made to cancel the call, then the Department will publish a cancellation notice in the New Jersey Register.
  • On June 15, 2020, at 52 N.J.R. 1247(a), the Department of Law and Public Safety, Division of Consumer Affairs, New Jersey Board of Nursing published a notice of administrative correction to the text of N.J.A.C. 13:37-7.2, pertaining to the education requirements for certification. Effective April 20, 2020, the Board deleted then-existing N.J.A.C. 13:37-7.2(b) and recodified then-existing subsections (c) and (d) as (b) and (c). (See 51 N.J.R. 922(a); 52 N.J.R. 896(a).) As part of the April 20, 2020 rulemaking, the Board inadvertently did not update the cross-reference at subsection (c) to account for the recodifications in this section. The Board is correcting that oversight to change the cross-reference at now-codified subsection (c) to refer to the “requirements of (a) and (b) above.”
© 2020 Giordano, Halleran & Ciesla, P.C. All Rights Reserved

Travelers Take Note: City of Chicago Issues Emergency Travel Order

If you, your colleagues, your employees, or your clients have travel plans to or from a COVID-19 hotspot, the City of Chicago is requiring a two-week quarantine. On July 2, 2020, the City of Chicago issued an Emergency Travel Order directing travelers either coming into Chicago or returning to Chicago from a state experiencing a surge in COVID-19 cases to quarantine for 14 days. The emergency order took effect on July 6, 2020, at 12:01 a.m. To date, this emergency order only applies to individuals arriving in Chicago. The State of Illinois has not taken similar action.

The emergency order applies to states that have had a case rate of COVID-19 greater than 15 new cases per 100,000 residents, per day, on a seven-day rolling average. The emergency order applies only if the traveler has spent 24 hours in the designated states. Therefore, if an individual simply drove through a designated state or had a connecting flight in a designated state, they are not subject to the restriction. In addition, the emergency order does not apply currently to international travel.

As of the date the emergency order was issued, the following states were subject to this quarantine restriction:

  • Alabama
  • Arkansas
  • Arizona
  • California
  • Florida
  • Georgia
  • Idaho
  • Louisiana
  • Mississippi
  • North Carolina
  • Nevada
  • South Carolina
  • Tennessee
  • Texas
  • Utah

This list is subject to change and is scheduled to be amended every Tuesday starting on July 14, 2020, with the changes to take effect three days thereafter, or the next Friday. For the latest information on the states subject to the travel ban, you can visit the City of Chicago’s website.

Importantly, an individual can be fined if found to be in violation of the emergency order. The fines range from $100 to $500 per day, up to a maximum $7,000. There are exemptions for “essential workers,” as designated by the Cybersecurity and Infrastructure Security Agency, such as individuals employed in emergency services, government facilities, and information technology. However, the definition of “essential workers” can be technical and the emergency order adds requirements for these professionals, including that the travel be for a work purpose and that any nonessential activities be avoided until the quarantine period has ended.

© 2020 Much Shelist, P.C.

For more COVID-19 travel restrictions, see the National Law Review Coronavirus News section.

Virginia Employees Protected From Retaliation for Raising Concerns About COVID-19 Workplace Safety Issues

On June 29, 2020, the Virginia Safety and Health Codes Board moved forward with an emergency workplace standard to curb the spread of COVID-19. These standards would apply to all Virginia employers and places of employment under the jurisdiction of the Virginia Occupational Health and Safety Administration.

Pursuant to 16 VAC 25-220, Emergency Temporary Standard, employers would be required to:

  • Mandate physical distancing on the job, i.e., “keeping space between yourself and other persons while conducting work-related activities inside and outside of the physical establishment by staying at least 6 feet from other persons. Physical separation of an employee from other employees or persons by a permanent, solid floor to ceiling wall constitutes physical distancing from an employee or other person stationed on the other side of the wall.”
  • Clean and disinfect all common spaces, including bathrooms, frequently touched surfaces, and doors at the end of each shift, and where feasible, disinfect shared tools, equipment, and vehicles prior to transfer from one employee to another.
  • Provide personal protective equipment to employees and ensure its proper use in accordance with VOSH laws, standards, and regulations applicable to personal protective equipment, including respiratory protection equipment when engineering, work practice, and administrative controls are not feasible or do not provide sufficient protection.
  • Assess the workplace for hazards and job tasks that could potentially expose employees to SARS-CoV-2/COVID-19 and ensure compliance with the applicable standards for “very high,” “high,” “medium,” or “lower” risk levels of exposure.
  • Inform employees of methods of self-monitoring and encourage employees to self-monitor for signs and symptoms of COVID-19 if they suspect possible exposure or are experiencing signs of forthcoming illness.
  • Notify their own employees who were at a worksite with an employee who subsequently tested positive for active COVID-19, other employers whose employees were also present, and the building/facility owner of the affected site within 24 hours of discovery of possible exposure.
  • Develop and implement policies and procedures for employees to report positive results from antibody testing, and while an employee who has tested positive for SARS-CoV-2 antibodies may return to work, employers are not required to allow an employee who has received such a test to return.

In addition, the emergency workplace standard prohibits employers from:

  • Discriminating against or discharging an employee because that employee voluntarily provides and wears their own personal protective equipment, if such equipment is not provided by the employer, as long as that equipment does not create an increased hazard for the employee or other employees.
  • Discriminating against or discharging an employee who has raised a reasonable concern about SARS-CoV-2/COVID-19 infection control to the employer, the employer’s agent, other employees, or a government agency, or to the public through print, online, social, or any other media.

These workplace safety standards are set to go into effect on July 15, 2020, and employers could be fined up to $13,000 for failing to comply.

The United States Department of Labor Occupational Safety and Health Administration (OSHA) has issued guidance to employers to protect workers but has not adopted a binding rule. OSHA provided guidance to employers on preventing worker exposure to SARS-CoV-2/COVID-19 in March 2020, and in June 2020 it released guidance on returning to work. The guidance on returning to work states that employers should continue to be flexible and allow employees to work remotely when possible, use alternative business operations such as curbside pickup to serve customers if feasible, implement strategies for basic hygiene and disinfection at work, encourage social distancing, apply procedures for identification and isolation of sick employees, and provide employee training on the various phases of reopening and necessary precautions. Further, employers should not retaliate against employees for adhering to OSHA’s safety guidelines or raising workplace health and safety concerns. Though these guidelines are not binding, employers are bound by the General Duty Clause of the Occupational Safety and Health Act of 1970, which requires that they provide a safe workplace free from serious hazards.

Virginia’s recently-enacted whistleblower protection law, which became effective July 1, 2020, will protect workers that disclose violations of the emergency workplace standard. In particular, the new Virginia whistleblower protection law provides a private right of action for an employee who suffers retaliation for “in good faith report[ing] a violation of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official.” Va. Code § 40.1-27.3(A)(1).

The statute proscribes a broad range of retaliatory acts, including discharging, disciplining, threatening, discriminating against, or penalizing an employee or taking other retaliatory action regarding an employee’s compensation, terms, conditions, location, or privileges of employment because of the employee’s protected conduct. Id. at § 40.1-27.3(A).

A prevailing whistleblower under Virginia’s whistleblower protection law can obtain various remedies, including:

  • An injunction to restrain a continuing violation;
  • Reinstatement to the same or an equivalent position held before the employer took the retaliatory action; and/or
  • Compensation for lost wages, benefits, and other remuneration, together with interest, as well as reasonable attorneys’ fees and costs. at § 40.1-27.3(C).

© 2020 Zuckerman Law

For more anti-retaliation legislation, see the National Law Review Labor & Employment law section.

There’s a Fake News Pandemic. Could COVID-19 and Trademarks be the Cure?

As political divides widen, accusations of differing viewpoints being “fake news” have become almost commonplace.  But during the COVID-19 pandemic, fake news has taken a more dangerous and sometimes deadly turn.

Fake news stories with fabricated COVID-19 data, sensational origin stories (it was NOT predicted by Nostradamus or created in a lab in China as a biological weapon), and baseless advice on how to protect against the illness are spreading almost as fast as the virus itself.

Fake news around COVID-19 has been directly linked to higher rates of infection, a rise in hate crimes and discrimination, increased anxiety, and further economic devastation, all of which exacerbate the current pandemic.  Even more troubling, information learned from fake news is more persistent and longer-lasting in a reader’s mind than genuine news sources because of its often sensational nature.

Fake news is a pandemic, and thus far, there is no cure.

Fake News: A brief history

Fake news is defined as “fabricated information that mimics news media content in form but not in organizational process or intent.” Although real news outlets may sometimes print opinion pieces that are more conjecture than fact, or even occasionally erroneously report particular facts amounting to poor reporting, their intent is to report noteworthy information, especially about recent or important events. Fake news, on the other hand, disguises itself as real news in an attempt to “cloak itself in legitimacy and to be easily shareable on social media” without any genuine intent to inform the public or attempt to be truthful.  Rather, it is intended to get clicks (e.g., readers) so as to increase advertisement sales.

Fake news isn’t new.  Its roots can be traced back to at least as early as the sixth century A.D.40 when Procopius, a Byzantine historian, disseminated false information, “known as Anecdota [to] smear the reputation of the Emperor Justinian.” Social media and online advertisement sales, however, have turned it into a seemingly unstoppable beast.

With social media, it is easier than ever to rapidly spread information without verification of the contents or source. Approximately seven-in-ten Americans (of all ages) currently use social media to connect with others and engage with news content, and approximately 43% of adults get their news from Facebook.

With the mere click of a button, a completely fabricated story can be instantly shared with hundreds of people, who in turn can share the story with hundreds more, and so on and so on.  The more click-baitey (i.e., catchy) the title, the quicker the story spreads and the more advertising money the author generates.

Unfortunately, in today’s climate, sensationalism is often more rewarding than the truth.

Legal Avenues are Ineffective to Combat Fake News

Fake news generally takes one of three forms:

  • Type 1-Spoofing: A content provider spoofs a legitimate news source to confuse consumers as to the source of the information (e.g., a fake FORBES Webpage circulating fake articles);

  • Type 2-Poaching: A content provider creates a publication that is intentionally confusingly similar to a recognized news source (e.g., registration of washingtonpost.com.co with a home page that mimics the WASHINTON POST) so as to poach consumers intending to visit a legitimate news source; or

  • Type 3-Original Sensationalism: A content provider creates an original publication under which to provide content, but relies on the sensational nature of the publication to disseminate the content via social media platforms.

Spoofing and poaching, as described above, typically violate several trademark laws.  The creation of a Webpage that spoofs a legitimate news outlet or appears confusingly similar to the news outlet’s brand is likely direct infringement of the news outlet’s trademarks.  Similar arguments could be made under the Lanham Act’s unfair competition and dilution frameworks (if a mark is famous enough to be spoofed, it is likely famous enough to be diluted).  Fair use defenses would also likely be unsuccessful (fair use for parody and satire does not apply where the intent is not to parody or satirize, but rather merely to confuse the relevant public and profit off of the goodwill of the mark).

Website owners, however, can sometimes be difficult to identify (they are often in foreign countries) and new sites can be created faster than infringing sites can be identified and shut down.  News outlets can thus wind up incurring large legal fees to shut down infringing sites in a proverbial game of whack-a-mole with little to no chance of recouping their costs from the bad actors themselves who live to infringe another day.

Several spoofing and poaching Websites owned by Disinformedia, a Web-based fake news content provider, have been shut down (see washingtonpost.com.co, nationalreport.net, and usatoday.com.co) as infringing the trademarks of major news outlets, but fake news is still on the rise.  This is because original sensationalism (type 3 above) is the most common form of fake news and it is nearly impossible to halt through legal action.

Fake news content providers have long relied upon free speech protections.  As long as fake news sources do not pretend to be other news outlets or to confuse readers as to the source of their content (i.e., spoofing and poaching), there is little that the legal system can do to stop the spread of information they may publish, no matter how false.  In very exceptional cases of falsehood, defamation suits may succeed, but these are rarely raised and even harder to prove.

Although legal avenues may not be effective at halting the spread of fake news, trademarks may still ultimately hold the key to stopping the fake news pandemic.

How Fake News is Hurting Facebook’s Brand

Social media platform owners have long held that social networks should not be the arbiters of speech. Mark Zuckerberg, CEO of Facebook, has repeatedly argued that Facebook and similar social media platforms were designed to give everyone a voice and bring them together and that to curtail such speech, no matter how false or offensive, would be to stifle free speech.

This has been a hard line for Mr. Zuckerberg and other social media giants like him.  Even after evidence came to light that foreign powers weaponized fake news to affect the 2016 election, Facebook’s official position on this point did not shift.

However, after months of Facebook failing to remove fake news stories surrounding COVID-19 from its platform, nonprofit groups began to label Facebook an “epicenter of coronavirus misinformation” and advertisers began to boycott the social media platform until it reformed its stance on known fake news stories.

Facebook soon released an official statement that it would finally be taking steps to “connect people to accurate information from health experts and keep harmful misinformation about COVID-19 from spreading”.  During the month of April alone, Facebook placed fake news warning labels on about 50 million pieces of content related to COVID-19 and redirected over “2 billion people to resources from the WHO and other health authorities” via an integrated COVID-19 information box and pop-up warnings notifying users that they had engaged with a fake news article relating to COVID-19.

Facebook’s response to COVID-19 misinformation has proven that it can prevent the spread of fake news without sacrificing its commitment to free speech.  If free speech is no longer an impediment to stopping misinformation, then it is time for Facebook to address the prevalence of fake news on its platform.

Seven-in-ten Americans use Facebook, yet over 60 percent of all Americans now believe the news that they see on social media is fake.  Fake news is ultimately hurting its brand.

As Harvard Business School professor David Yoffie explains, social media platforms such as Facebook have developed goodwill (i.e., trust) in their brands over time.  That goodwill is borrowed by every shared news story, whether real or fake.  When Facebook users see articles generated from an unknown source, they believe the article is factual because it is shared by real people on Facebook and subconsciously or consciously assume that Facebook approves the content.

If the majority of Facebook users now believe that the news they see on social media is fake, then they have lost trust in Facebook itself, thus diluting Facebook’s brand.  As fake news continues to dilute the Facebook brand and associated trademarks, Facebook is at risk of further losing goodwill, users, and, perhaps most importantly to Facebook, advertising dollars.

Few would argue that Facebook has an altruistic interest in the spread of fake news on its platform, but the Facebook brand will continue to be diluted if it does nothing to stop the spread of fake news.  Facebook has taken the first steps to identify and target fake news on its platform brand as it relates to COVID-19, but only time will tell if Facebook will expand these measures to apply to other types of fake news stories.

It took COVID-19 to force Facebook to take steps to protect its trademark (i.e., brand) and confront fake news.  Perhaps it takes a pandemic to face a pandemic.

Copyright 2020 Summa PLLC All Rights Reserved

For more on COVID-19 see the National Law Review Coronavirus News page.

Black Lives Matter, Racial Unrest and Corporate Culture – How Do Employers Respond?

As the daily news continues to show protests and calls for justice in response to the death of George Floyd and others at the hands of police officers, there is, unsurprisingly, a desire from employees to hear from their employers regarding the ongoing violence and racial unrest in our communities and across the country. Many employers recognized the gravity of the racial unrest by celebrating, for the first time, Juneteenth on June 19, 2020, a holiday celebrating the emancipation of slaves. But is that enough? How do employers respond?

As a practical matter, employers must be aware of the application of Constitutional free speech protections, employee rights under the National Labor Relations Act and state laws that may apply to expressive employee conduct, as detailed in our previous post.

Beyond that, employers can choose the level of their response and engagement, or choose to do nothing at all—there is no right or wrong answer or a “one size fits all” solution. The most common reaction from employers is to acknowledge the unrest and issue a statement of support. Many employers have also chosen to make a public announcement expressing solidarity and support of the Black Lives Matter movement.

Though these responses are important, they fail to accomplish the more ambitious goal of many employers, which is to articulate and implement a strategy for lasting and real change within their own workplace and beyond. This action requires substantial reflection, consideration, time and effort.

So, for employers looking to do more, where do they start?

  • Leadership: Good leaders serve as good models. Leaders can lead by example and provide a safe workplace where all employees feel respected and included. As it pertains to the current environment, leaders can be open about their own lack of knowledge and share their growth and experiences with their workforce.
  • Anti-Discrimination Policies: Employers can review their policies regarding equal employment opportunity and workplace discrimination. Though most employers articulate such policies as a matter of course, it is important to reinforce these policies and remind employees of what is expected of them and to reassure employees who may be feeling vulnerable at this time.
  • Diversity Initiatives: Employers can focus on building diversity within their ranks by ensuring that recruitment, hiring, retention and advancement are truly objective and based on merit. Employers can also consider implementing a version of the National Football League’s recently-revised “Rooney Rule,” wherein at least two non-white candidates must be considered for open head coaching positions, and one non-white candidate must be considered for coordinator, senior football operations or general manager positions. Forming a diversity committee or task force is another way to ensure that minority members of your workforce are being heard and understood by management.
  • Awareness: Employers can educate their employees about prejudice and racism in its various forms; this can consist of formal training or open forums in which employees can communicate with one another and, importantly, with their co-workers of color. Employers can also make educational materials available for employees.
  • Community Involvement: Employers can publicly support the movement in the form of donations or activism. Doing so can create a sense of pride among your workforce, and it can also help in attracting future hires that share the principles of your workplace.

© Copyright 2020 Squire Patton Boggs (US) LLP

ARTICLE BY Anne Marie Schloemer at Squire Patton Boggs (US) LLP.

For more on employer-employee conduct see the National Law Review Labor & Employment law section.

Legal Industry Updates from the National Law Review: Law Firm Moves, Hires and Response to Racial Injustice

The legal industry continues to respond to larger forces in society, and along with our usual focus on law firm moves, hires, and accolades, we take a look at the specific ways law firms are pledging to combat racism and fight for social justice in their communities and across the country.

Law Firm Moves, Hires and Recognitions

Down in Texas, Erin England joined Katten’s Dallas office as a partner in the firm’s commercial finance practice. England represents alternative lending institutions and banks in negotiating and structuring domestic and international commercial transactions. She also has experience in the real estate finance industry, representing lenders and borrowers in real estate and construction loans involving retail space and industrial properties.

“In the last two years, we’ve added leading attorneys like Erin in key growth areas such as commercial finance,” said Mark S. Solomon, managing partner of Katten’s Dallas office. “As an active member of several organizations committed to the hiring, retention, and promotion of diverse lawyers, Erin also shares in Katten’s deep commitment to diversity and inclusion, which is a fundamental part of the culture in our Dallas office.” 

Michael Gaston Bell
Michael Gaston-Bell of Katten

Also joining the Katten Dallas is Michael Gaston-Bell, who is the first labor and employment attorney in the firm’s Dallas office.  His previous experience includes representing clients on Title VII, Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA) and the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act  (FLSA) workplace matters in state and federal court, and working with corporate leadership on complex and often crisis level employment issues, including internal investigations, unfair competition and major transactions in health care, entertainment, banking, military contracting and retail industries.

“Michael is a talented attorney who will offer our clients in Dallas and across the country exceptional employment litigation counsel,” said David Crichlow, national chair of Katten’s Commercial Litigation group. “He has the skills to succeed and a track record for being a true advocate of his clients who often face tough, complicated issues.”

Katten opened the firm’s Dallas office with seven partners in 2018 and has grown to over 40 attorneys in the past two years.

George Howard joined the Restructuring & Reorganization practice of Vinson & Elkins (V&E) in their New York City office as a partner. Howard represents distressed debt investors, asset purchasers, companies, banks and secured lenders in out of court restructurings, chapter 11 reorganizations, distressed M&A, cross-border insolvency proceedings, and secured financing transactions. 

“We are focused on growing the firm’s restructuring team particularly to meet increasing client demand for company and debtor side representations,” said V&E managing partner Scott Wulfe. “George is a great addition to the team not only because of his significant debtor experience, which perfectly complements our existing strengths but also because he is a natural team player and a great cultural fit for V&E.”

Matthew Jones Ropes & Gray Attorney
Matt Jones Ropes & Gray

Ropes & Gray’s Chicago office added Matthew (Matt) R. Jones to the firm’s employment, executive compensation, and benefits practice group. Jones advises private equity firms and their portfolio companies on executive compensation in relation to complex commercial transactions. Jones also advises clients on Securities and Exchange Commission executive compensation arrangement reporting obligations.

“We are very excited that Matt has joined the firm,” said global private equity practice co-chair Neill Jakobe. “Chicago is a priority market for our clients and our firm, and it is critical that we continue to attract the top talent in this market.  Matt is an exceptional fit from a strategic and cultural perspective and he will further enhance the value we deliver to our clients locally, and globally.”

 Christopher Passodelis Jr., James M. Sander, Brandon T. Uram and Megan L. Tymoczko-Korch joined Steptoe & Johnson PLLC, working remotely from the firm’s Southpointe office in Canonsburg, Pa., with plans to move to the downtown Pittsburgh office this fall. All four attorneys practice in the firm’s Business Department, handling business transactions and corporate services and tax. Uram focuses his practice on transactions and business litigation. 

“Chris, Jim, and Megan bring an entrepreneurial spirit and many decades of diverse experience representing businesses large and small to our firm. Brandon is a creative and fierce advocate for clients who are faced with litigation,” said CEO Susan S. Brewer. “As Steptoe & Johnson grows its presence in western Pennsylvania, they will play a key role in helping us meet our clients’ needs.” 

Immigration attorney Sarah Hawk joined Barnes & Thornburg (B&T) as a partner, along with Of Counsel Terra Martin and Paralegal Elizabeth Wei. She has 20 years of corporate immigration experience representing universities, corporations, and individuals, and leads the firm’s Southeastern immigration practice. 

“In this critical time, we couldn’t ask for a better resource for our clients than Sarah,” said B&T’s labor and employment department leader Kenneth Yerkes. “COVID-19 has complicated many employees’ immigration statuses, whether it stems from remote work, reductions in force, border closings or shortened internship programs.” 

David F. Johnson of Winstead was named to the Board of Directors for the Texas Board of Legal Specialization (TBLS).  Established in 1974, the TBLS is a certifies lawyers and paralegals in their specific area of law, bestowing certification upon demonstration of expertise, after passing a rigorous exam and demonstration of completion of CLE continuing education credits.  Out of 110,000 attorneys licensed to practice in Texas, only 7400 are board-certified.  Johnson, who writes extensively on Fiduciary law in Texas, is also Board Certified in Civil Appellate Law, Civil Trial Law, and Personal Injury Trial Law.  He will serve a three-year term on the TLBS beginning July of 2020.

Law Firm Contributions to Social Justice

Law firms have responded in a variety of ways to the recent protests, civil upheaval, and calls for change surrounding the murder of unarmed minorities at the hands of police.  Many law firms announced Juneteenth observances, and encouraged their employees to use the day as a chance to reflect on how to best encourage tolerance and justice in their lives and through their legal work. 

Below is a sampling of some initiatives, pro-bono efforts, and other steps towards positive change announced by law firms.

One thousand attorney law firm BakerHostetler announced the firm’s intention to develop firm-wide plans to become a more “inclusive, diverse and successful place to work and thrive.”  The firm announced plans to partner with civil and human rights organizations to develop an environment welcoming of honest conversations about race and discrimination, as well as resources to educate firm-wide to effect change.  As an initial step, the BakerHostetler Foundation is donating $100,000 to the Equal Justice Initiative, a non-profit dedicated to justice, ending mass incarceration and police reform.  Along with the donation, BakerHostetler acknowledges “like many other law firms, we have work to do to increase diversity among our attorneys and leadership, and we will not stop working to address these issues.” 

A global law firm focused on technology and innovation, Orrick has also announced plans to advocate for racial equality and diversity in the legal industry.  Along with increased resources devoted to the firm-wide pro-bono program, Orrick Cares, Orrick has also announced the Orrick Racial Justice Fellowship Program.  This program will allow at least five attorneys within the firm to devote a year each to focus on social justice and civil rights issues. 

Additionally, two associates with Orrick, Tatyanna Senel and Yasmina Souri rallied almost 1,000 attorneys to provide pro-bono representation to protesters in Los Angeles. Senel and Souri helped formalize a working relationship between Orrick and the National Lawyers Guild, an established bar association with a mission of using the power of the law for the people, by bringing together lawyers, law students, legal workers and jailhouse lawyers to work together on a wide spectrum of issues, and create change on the local, regional, national and international levels.  The National Lawyers Guild (NLG) is one of the most progressive bar associations in the country, as well as one of the oldest, and the first to be racially integrated.  Additionally, Senel and Souri activated their own networks to rally friends and colleagues to the cause.  Senel says, “We’re [Senel and Souri] both passionate about the message, and we felt like there was something we could do with our law degrees.”

According to the LA Times, almost 3,000 protesters were arrested in Southern California during the upheaval surrounding George Floyd’s death.  Through this partnership, NLG is able to deploy almost 1,000 attorneys with varying levels of expertise to provide legal defense to protesters arrested.  Criminal Defense attorneys will handle the more complex matters, while attorneys with limited or no experience in criminal law will handle lower-level issues, like curfew violations.  Additionally, the volunteers will provide training on how to act as a legal observer.

Wiggin and Dana LLP, in response to racial inequalities brought to the forefront by recent events, has announced the Wiggin Opportunity Initiative, a pledge to provide $10 million in pro-bono legal services to minority-owned businesses over the next decade.  Managing Partner, Paul Hughes, said, “While born of current events and frustrations, the firm wants to do something that will outlast the spotlight of this particular moment and support long-term improvement in opportunity and equality in our communities.  By leveraging the particular skillset of our sophisticated lawyers in a sizeable, sustained and focused effort over time, we hope to make real change in a way that we could not achieve by more modest, incremental efforts.”

The next step in the initiative is to identify, through collaboration with community partners businesses that could benefit from the initiative.  The legal services will be available across a variety of practice groups in order to meet a variety of needs in the business community.  With a ten-year commitment, the firm is hoping to develop long-term relationships with the minority businesses to form partnerships to amplify the success of the businesses, to best impart lasting change on the landscape.

WilmerHale is a full-service, international law firm with 1,000 attorneys is focusing their racial equality efforts on police reform. WilmerHale announced their intention to donate at least a quarter of a million dollars to organizations working on police reform efforts, and select two fellows to work with civil rights groups addressing issues related to systemic racism, criminal justice and holding police accountable. 

Focusing on WilmerHale’s proven track record in Police Department Counseling, the firm has established a pro bono client initiative focusing on police reform and social inequities affecting minorities, focusing on police accountability—using WilmerHale’s long-standing expertise in advising police departments in Baltimore and Chicago under Department of Justice (DOJ) investigation to assess practices and bolster public safety by helping departments adopt best practices.  WilmerHale indicates these steps are just the beginning, saying: “These are our initial steps in our efforts to ensure meaningful change. We plan to build on and expand this work.”

Many law firms have announced their intention to contribute financially as well as look internally and find ways to make their own workplaces more inclusive, by formalizing initiatives to increase diverse attorney representation across the industry.  In fact, to further this goal, over 125 law firms have joined the Law Firm Antitracism Alliance, with the purpose of:

. . . leveraging the resources of the private bar in partnership with legal services organizations to amplify the voices of communities and individuals oppressed by racism, to better use the law as a vehicle for change that benefits communities of color and to promote racial equity in the law. 

Through coordination of Pro-bono efforts, law firms will partner with legal services organizations to “identify and dismantle structural or systemic racism in the law.”

On June 18, 2020, the U.S. Supreme Court ruled that the Trump Administration could not continue with its plan to dismantle the Deferred Action for Childhood Arrivals (DACA) program, and the 700,000 DACA recipients are protected from deportation and their work authorization remains valid.  The decision, the Department of Homeland Security et al. v. Regents of the University of California et al. was celebrated as a major victory by immigration activists working on behalf of DACA recipients.

Akin Gump, wrote an amicus curiae brief on behalf of the respondents, in conjunction with the American Historical Association, the Organization for American Historians and the Fred T. Korematsu Center for law and Equality, along with over 40 individual historians, supporting the legal challenge to the Trump Administration’s decision to rescind the DACA program.  The brief looks at the historical context of decisions such as these, with a focus on the coded language and implicit bias used by the government to support policies. The brief indicates, in part:

. . . [A]mici seek to ensure that this Court understands the ways in which racially coded language has been used by government actors, both past and present, to mask illicit discriminatory motives—particularly in the immigration context, including the rescission of DACA.

Pratik Shah, co-head of Akin Gump’s Supreme Court and appellate practice, pointed out that many DACA recipients have only ever known the United States as their home, and all who earn DACA protection had done so by furthering their education or serving in the military.  He says, “The Court’s decision that the administration cannot arbitrarily upend the lives of hundreds of thousands who arrived in our country as children . . .  is a victory for both the rule of law and common decency.”

Julius Chen, corporate partner Alice Hsu and litigation senior counsel Jessica Weisel worked with Mr. Shah on the brief.

It’s impossible to say what will come next in 2020, but we’ll have more legal industry news in a few weeks.  Stay safe and sane until then!

Copyright ©2020 National Law Forum, LLC

ARTICLE BY Eilene Spear and Rachel Popa at The National Law Review / The National Law Forum LLC.

For more legal marketing news, see the National Law Review Law Office Management section.

Seila Law LLC v. Consumer Financial Protection Bureau: Has the Supreme Court Tamed or Empowered the CFPB?

On June 26, the Supreme Court issued its long-awaited opinion in Seila Law LLC v. Consumer Financial Protection Bureau,1 finally resolving the question that has dogged the new agency since its inception:  Is the leadership structure of the Consumer Financial Protection Bureau (CFPB) constitutional?  Writing for a 5-4 majority, Chief Justice John Roberts ruled that the CFPB structure—“an independent agency that wields significant executive power and is run by a single individual who cannot be removed by the President unless certain statutory criteria are met”—violates the Constitution’s separation of powers.2  

For financial services companies regulated by the CFPB, the most important aspect of Seila Law is not the headline constitutional defect, but the remedy.  Choosing “a scalpel rather than a bulldozer,”3 the Court did not invalidate the CFPB.  The Court held 7-2 that the Director’s constitutionally offensive removal protection could be severed from the CFPB’s other authorities, thus bringing the Director (and with her, the CFPB) under Presidential control, while leaving the CFPB’s other powers in place.4

While Seila Law  is an important case in the evolving doctrine of separation of powers as applied to independent agencies, the case has three immediate consequences for financial services companies.  First, the CFPB is here to stay, and its broad authorities and other controversial aspects (such as its insulation from Congressional appropriations) remain intact.  Second, the CFPB’s Director is now directly accountable to the President, significantly raising the stakes in the 2020 election for the agency’s regulatory and enforcement agenda.  Third, the Court left one important question unanswered:  it declined to address the effect of its ruling on prior CFPB rules and enforcement actions.  While we believe the agency will attempt to cure the constitutional defect, we expect continued litigation—and uncertainty—on this issue.

Background

In response to the 2008 financial crisis, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”), creating the CFPB as an independent financial regulator within the Federal Reserve System.5  The CFPB has expansive authority to “implement and, where applicable, enforce Federal consumer financial law,” which includes 19 enumerated federal consumer-protection statutes and the Dodd-Frank Act’s broad prohibition on unfair, deceptive, and abusive acts and practices.6  The CFPB’s authority over consumer financial products and services includes rulemaking authority with respect to the enumerated statutes, the ability to issue orders, including orders prohibiting products and services which it concludes are “abusive” or substantively unfair, as well as the power to impose significant financial penalties on financial services companies.  The CFPB is funded through the Federal Reserve System, and thus is not subject to Congressional constraint through the appropriations process.  Although technically housed within the Federal Reserve System, the CFPB also is not subject to oversight or control by the Board of Governors of the Federal Reserve System.  As a result, the CFPB was created to be an independent agency, largely unconstrained by Congress or the Federal Reserve System.  The CFPB is headed by a single Director appointed by the President, by and with the advice and consent of the Senate, for a five-year term.7  The Director may be removed by the President only for “inefficiency, neglect of duty, or malfeasance in office.”8  

In 2017, the CFPB issued a civil investigative demand to Seila Law LLC, a California-based law firm that provides debt-related legal services to consumers.  Seila Law refused to comply, objecting that concentrating the CFPB’s authority in a single Director with for-cause removal protection violated the separation of powers doctrine.  The CFPB filed a petition to enforce its demand in federal district court.  The district court rejected Seila Law’s constitutional objection and ordered the law firm to comply with the demand.  The Court of Appeals for the Ninth Circuit affirmed.9

Case Analysis: Seila Law

The Supreme Court granted certiorari to address the constitutionality of the CFPB’s single-Director structure.  That decision was telling in and of itself, given that the Ninth Circuit’s ruling was in accord with PHH Corporation v. CFPB, the D.C. Circuit’s en banc opinion upholding the Director’s removal protection.10  As many had expected, the Supreme Court reversed the Ninth Circuit and held that Congress’s restriction on the President’s power to remove the CFPB’s Director violated the separation of powers doctrine. 

The Court began its analysis from the premise that Article II of the Constitution gives the entire executive power to the President alone, “who must ‘take care that the Laws be faithfully executed.’”11  Lesser officers who aid the President in his or her duties “must remain accountable to the President, whose authority they wield.”12  The President’s power to remove these lesser officers at will is foundational to the President’s executive function and “has long been confirmed by history and precedent.”13  The Court held that “[w]hile we have previously upheld limits on the President’s removal authority in certain contexts, we decline to do so when it comes to principal officers who, acting alone, wield significant executive power.”14  The Court found that the CFPB’s Director fit that bill.  In creating the CFPB, Congress “vest[ed] significant governmental power in the hands of a single individual accountable to no one.”15  Such an agency “has no basis in history and no place in our constitutional structure.”16 

Next, the Court turned to the remedy.  Seila Law argued that the Director’s unconstitutional removal protection rendered the “entire agency … unconstitutional and powerless to act.”17  The Court disagreed.  Relying on the Dodd-Frank Act’s severability clause, the Court’s severability precedent, and the proposition that “Congress would have preferred a dependent CFPB to no agency at all,” the Court ruled that the Director’s removal protection is severable from the CFPB’s other statutory authorities.18  “The agency may therefore continue to operate, but its Director, in light of our decision, must be removable by the President at will.”19  

Finally, the Court expressly declined to address how its holding affects prior CFPB regulatory and enforcement actions.  The government had argued that the Court need not reach the constitutional question because the CFPB’s demand to Seila Law had since been ratified by an Acting Director accountable to the President.20  The Court remanded the question of ratification to the lower courts, noting that it “turns on case-specific factual and legal questions not addressed below and not briefed here.”21

Implications

Seila Law is an important case for the canons of administrative law and the separation of powers doctrine.  But for financial services companies regulated by the CFPB, it has meaningful (and immediate) practical consequences.

First, the CFPB has escaped Supreme Court review with its authorities basically untouched.  Absent Congressional action, the CFPB will (i) continue to be run by a single Director, (ii) continue to wield expansive rulemaking, supervisory, and enforcement authority over the multi-trillion dollar market for consumer financial products and services, and (iii) continue to be insulated from Congressional control via the appropriations process.

Second, the CFPB’s Director is now directly accountable to the President—whoever that person may be.  Typically, financial regulators have a measure of insulation from the political process to provide consistency and certainty to financial markets.  With this decision, the election of the next President—and the prospect of a Democratic administration—could result in significant and immediate changes to the CFPB’s regulatory and enforcement agenda.

Third, while Seila Law secured the CFPB’s future, the Court left in place significant uncertainty as to its past.  This past includes major enforcement actions and rulemakings that have reshaped the market for consumer financial products and services over the last nine years.  Of course, it remains to be seen what appetite financial services companies have to challenge the CFPB’s prior rules and enforcement orders.  And, we expect the CFPB will attempt to remedy the constitutional defect by ratifying the agency’s past actions or perhaps invoking the de facto officer doctrine.22  Yet, the availability of either remedy is an open question.  Ratification in particular is a live dispute in both Seila Law and a pending en banc appeal before the Fifth Circuit, Consumer Financial Protection Bureau v. All American Check Cashing.23  Ratification of prior agency actions was also left unresolved in another thread of the Supreme Court’s recent separation of powers jurisprudence.  In Lucia v. SEC, the Court found that the SEC hired administrative law judges (ALJs) in violation of the Appointments Clause, but offered limited remedial guidance aside from instructions that Lucia was entitled to a “new hearing before a properly appointed” ALJ.24  While litigating Lucia’s challenge, the SEC issued an order purporting to ratify its past ALJ appointments by approval of the Commission itself.  The Court acknowledged that order, but declined to address its validity.25

1   Seila Law v. Consumer Financial Protection Bureau, 591 U.S. ____ (2020) (June 26, 2020).

2   Id., Slip Op. at 2–3.

3   Id., at 35.

4   Id.,  at 3. 

5   Title X of the Dodd-Frank Act, 12 U.S.C. § 5301 et seq., created the CFPB and defines its authorities. 

6   12 U.S.C. § 5511 (defining CFPB’s purpose); 12 U.S.C. § 5481(14) (defining “Federal consumer financial law”). 

7   Id. § 5491(b)(2), (c).

8   Id. § 5491(c)(3).  For a detailed discussion of the CFPB and its powers, see our Clients & Friends Memo, The Consumer Financial Protection Bureau: The New, Powerful Regulator of Financial Products and Services (March 06, 2012).

9   Seila Law, Slip Op. at 6–8 (discussing procedural history).

10 PHH Corp. v. CFPB, 881 F. 3d 75 (D.C. Cir. 2019) (en banc).  Tellingly, then-Judge Kavanaugh wrote the D.C. Circuit panel decision holding that the CFPB’s structure violated the separation of powers doctrine.  839 F.3d 1 (D.C. Cir. 2016). The en banc court vacated that decision, but now-Justice Kavanaugh joined the majority in Seila, reiterating his separation of powers analysis from the D.C. Circuit.    For further analysis of the PHH decision, see our Client & Friends Memo Federal Appeals Court Rules That CFPB Structure is Constitutional  (Jan. 31, 2018) (discussing the en banc decision); D.C. Circuit Brings CFPB under Presidential Control  (Oct. 13, 2016) (discussing the initial panel decision of the D.C. Circuit).

11 Seila Law, Slip Op. at 11 (quoting U.S. Const., Art. II, § 1).

12 Id. at 12.

13 Id.

14 Id. at 36.  Specifically, the Court wrote that it has recognized two limited exceptions to the President’s unrestricted removal power.  Seila Law, Slip Op. at 15–16.  First, in Humphrey’s Executor, 295 U.S. 602 (1935), the Court upheld removal restrictions for Commissioners of the Federal Trade Commission, which Roberts characterized as “a multimember body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power.”  Seila Law, Slip Op. at 15.  Second, in United States v. Perkins, 116 U.S. 483 (1886), and Morrison v. Olson, 487 U.S. 654 (1988), the Court permitted removal protections for certain inferior officers with narrow duties, such as an independent counsel appointed to investigate and prosecute specific crimes.

15 Seila Law, Slip Op. at 23.

16 Id. at 18.

17 Id. at 31.

18 Id. at 32–36 (emphasis in original).

19 Id. at 3.

20 Id. at 30.

21 Id. at 31. Justice Thomas viewed this theory as irrelevant, since the Acting Director could not have ratified the continuance of the action by Director Kraninger. Justice Kagan did not address this theory specifically.

22 See Ryder v. United States, 515 U.S. 177 (1995) (the de facto officer doctrine “confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.”).

23 No. 18-60302 (5th Cir.).

24 Lucia v. S.E.C., 138 S. Ct. 2044, 2055 (2018).

25 Id. at 2055 n.6.

© Copyright 2020 Cadwalader, Wickersham & Taft LLP

ARTICLE BY Rachel Rodman and Scott A. Cammarn and Nihal S. Patel at Cadwalader, Wickersham & Taft LLP.

For more on the CPFB, see the National Law Review Consumer Protection law section.

How Marketers Can Better Support Inclusion for Women Lawyers of Color — Today

A new in-depth report from the American Bar Association, Left Out and Left Behind: The Hurdles, Hassles and Heartaches of Achieving Long-Term Legal Careers for Women of Color, draws on data and interviews to tell the story of what life is like for women lawyers of color. The report, authored by social scientist Destiny Peery, past ABA president Paulette Brown and Chicago attorney Eileen Letts, demonstrates why, despite increased efforts by firms and the profession generally, to improve diversity and inclusion, women of color continue to face barriers to advancement and are much more likely than white women counterparts to leave the profession.

This report is essential reading for any law leader who is serious about making true substantive changes that will improve the retention and advancement of women of color — particularly those leaders whose firms are posting “Black Lives Matter” messages in internal communications and on social media channels. Becoming an antiracist law firm does not end with a slogan or “messaging” — it requires an honest examination of formal and informal policies and practices, and a reckoning with the impact of those policies on lawyers of color. Then it’s time to reimagine how your firm runs to make sure opportunities are fairly distributed.

While it’s very important to hear and sit with the stories individual lawyers share from their experience of implicit and explicit bias, if I know my audience of driven, task-oriented marketers and communicators, you will be skipping to the end, where the report recommends next steps for firms that want to take action. Below I outline those general recommendations, and then consider the role of the marketing department in helping to make them a reality.

Adopt Best Practices for Reducing Biases in Decision-Making. “[P]revious research that has shown that high levels of subjectivity in promotion standards, selection for assignments, compensation decisions, and performance appraisals are often colored by stereotypes and serve as institutional and structural barriers to the advancement of women of color and other underrepresented attorneys.”

What Marketers Can Do: How does your department determine which partners receive marketing and communications support as they work to build their business? Is there a way to distribute those resources — help with individual lawyers’ social media channels, assistance writing and placing thought leadership, nominations for awards and key boards of directors — more fairly to elevate your firm’s diverse attorneys? How can you help advise up-and-coming partners on which opportunities will be the best use of their limited time and make the biggest impact on their business development?

Improve Access to Effective, Engaged Mentors and Sponsors. “[W]omen of color are especially likely to report that they lack access to mentors or sponsors who are well-connected and have power and influence to both clue them into important dynamics of the workplace and effectively advocate for them.”

What Marketers Can Do: Marketers have a great opportunity to help create mentorship and sponsorship relationships through the business development and proposal-writing process. By now, most rainmakers and practice leaders understand that business clients demand to be served by diverse teams. So they’re being thoughtful about including diverse attorneys in pitch decks and other materials. You can help move that inclusion to the next level by adding a follow-up communication step to your BD process in which all named/pictured team members de-brief and offer feedback. This is a simple way to build a platform upon which younger and diverse attorneys can demonstrate their value in front of the senior partners who can shape their career opportunities. In addition, you can use channels like the internal firm newsletter to educate more senior partners on how to effectively advocate for diverse attorneys — and, in doing so, help the firm stand out as a leader on an issue that matters very much to clients.

Take an Intersectional Approach to Addressing Diversity and Gender. “[B]lindness to or ignorance of the ways that gender and race (as well as other social identities) can interact to create distinct experiences” has so far limited what firms have been able to achieve. Firms must acknowledge that, while they are still disadvantaged, white women’s careers develop differently because of their access to privilege. They navigate networking differently, are viewed differently by colleagues, clients, and judges, and receive distinct treatment when it comes to work distribution and performance evaluation.

What Marketers Can Do: Take a look at how you use words like “diversity,” “equity,” and “inclusion” in internal and external firm communications. Do you grapple with intersectionality — that is, the way that experiences of race and gender (and class and sexuality and ability) intersect for your attorneys — in your messaging? Are there ways that your “diversity” initiatives and communications erase the experience of women who are not white? How could you make changes to address this issue?

 “[O]ur participants mentioned again and again the myriad ways that the culture of the legal profession interfered with their abilities to succeed, to feel valued, and sometimes to persist in the legal profession.”

What Marketers Can Do. So much! 1) Take a look at your firm’s (pre-Covid, in-person) events. Where are they typically held? Do you always choose locations and activities that are most comfortable for wealthy white men? How might you change things up? 2) Does your firm have a written editorial style guide? If so, does it include a section on inclusive language so that everyone knows how to use language in the most inclusive ways possible? 3) If your intended audience for your internal firm communications is “everyone,” are you sure your language and framing actually accomplish that goal, or are you unintentionally treating a white reader as the default? 4) What other unexamined policies, practices, habits and conventions may implicitly communicate to diverse partners that they don’t fully belong? Learning how to spot potential for “othering” and exclusion in communications and other marketing activities is an important skill your department needs to teach its junior members and encourage them to practice.

True change that makes law firms into more equitable and inclusive workplaces for all lawyers must happen on both the systemic and individual levels. While many of the most sweeping and necessary changes are out of the hands of junior and senior legal marketers, there are plenty of things we can do within the scope of our influence that will make a difference. And the time to start is now.

© 2020 Page2 Communications. All rights reserved.

ARTICLE BY Debra Pickett at Page 2 Communications.

For more on diversity in law firms, see the National Law Review Law Office Management section.

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