Be a smarter legal leader

When it comes to working from home, the technology isn’t the hard part (everyone knows how to display an island background behind them on Zoom, duh!). For attorneys, the struggle has been staying in touch with co-workers, especially pertaining to supervisor-employee relationships.

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• People aren’t picking up the phone: A survey of 300 attorneys by The Red Bee Group showed that 26 percent of respondents had not participated in an employer-led conference call or video call since beginning to work remotely. Only half had received check-in phone calls from supervisors.
• The struggle is real: On the surface, no calls with the boss or (sometimes annoying) co-workers may seem like heaven. IRL meetings are the worst. But Zoom get-togethers and phone calls, regardless of the topic, have replaced the water cooler and coffee break banter that keep us focused throughout the day.  

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The key for maintaining work relationships

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Discussing the survey results, Roberta Liebenberg, a principal at Red Bee and a senior partner at Fine, Kaplan and Black in Philadelphia, told Law.com that employers and attorneys “are going to need to communicate in a way they are not really used to,” with more empathy and in a more personal fashion.

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The Verdict

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Get creative with ways to stay in touch with your co-workers. Virtual happy hours are easy to schedule. And one firm in Boston, Foley Hoag, has started an in-house newsletter where attorneys share pictures of pets, kids and workspaces once a week.

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According to Bloomberg Law, bankruptcies for businesses for February and March will be down compared to last year. That doesn’t mean coronavirus hasn’t had an effect yet. Expect a surge to come in a few months.

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• Businesses are waiting on the stimulus: The $2 trillion deal reached last week by the federal government offers monetary relief and potential loans to businesses. They will likely spend time figuring out if the help is enough to offset their losses or wait to judge customer sentiment when quarantine orders end.
• Bankruptcies are expensive, too: The last thing a struggling company needs right now is the $1,000 an hour rate top bankruptcy attorneys charge.

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Withholding rent may be the better option

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Retailers might be able to bide time for themselves by withholding rent. Mitchel Friedman, senior vice president at RCS Real Estate Advisors, told Bloomberg Law that landlord actions against tenants will be difficult to enforce now, given the number of business tenants struggling and temporary waivers on evictions in many jurisdictions.

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The Verdict

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Despite the delays, bankruptcy attorneys are preparing for a rash of bankruptcies -- more than from the 2008 financial crisis. Rachel Strickland, co-chair of the bankruptcy practice at Willkie Farr & Gallagher LLP told Bloomberg Law, “Any company that was already on the edge is now at the tipping point.”

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Force majeure has been one of the most important phrases in a lawyer’s vocabulary the last couple weeks. It’s a clause in many contracts that excuses a party from carrying out its obligations because of unforeseen circumstances.

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Is force majeure working for GCs in the coronavirus crisis?

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• The NBA provides a good example: The NBA postponed the season in mid March and may cancel it altogether. A force majeure clause in its contract with NBA players states that “epidemics” are considered an “act of God” that would make it impossible to fulfill payment contracts. Legal experts believe the NBA could forgo payments to athletes for any portion of games not played, although it has not done so yet.
• The key is the word “epidemics”: If your contract doesn’t have a similar way to describe what’s been happening -- pandemic, virus, disease, quarantine, state of emergency -- you may be out of luck. Courts are known to narrowly rule on the applicability of force majeure clauses and typically require a specific phrase in the contract that relates to the circumstance preventing the contract from being fulfilled.    

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The force majeure alternative  

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If a force majeure clause won’t cover the problem, lawyers can also seek to use impossibility or impracticability defenses. Doing so requires proving that it was objectively not possible to perform the duties of a contract. That’s a high bar, but restrictions on essential businesses could count as proof.

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The Verdict

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Analysts at Gunder Dettmer always recommend seeking potential alternatives agreeable to both parties before invoking a force majeure clause. And as you draft new contracts in the future, don’t forget key words related to epidemics and pandemics.

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Despite early attempts at federal relief, the economy keeps taking hits. This is how the legal industry will likely be impacted during an economic downtime, according to Law.com.

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• Demand for legal services could drop: The demand declined after the 2008 financial crisis, and Hugh A. Simons, former senior partner of The Boston Consulting Group, expects a greater fall this time.
• The effect on hiring outside counsel: With demand for legal services down, in-house counsel will keep much of the work for themselves. If they hire outside help, they will almost certainly seek discounted rates (shameless plug: Lawtrades’ cost-effective remote workforce).

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What lawyers should be doing now

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Simons recommends focusing on clients or legal issues that require the most immediate need. Secondly, budget now. Consider the possible financial restraints in the future and prioritize plans that will be important enough for your client or company to pay for.    

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The Verdict

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No one knows what to expect for the coming weeks and months, but bracing for the worst and making a plan may help -- and will at least keep you sane for now.

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For now, California is the lone state with new online privacy measures, courtesy of Assembly Bill 5. But these laws are likely coming everywhere else soon. Checkr’s Irene Liu explains on ABA Journal how to be on top of the changes.  

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1. ‍Start advocating now: Talk to lobbyists and lawmakers throughout the US and try to convince them about the importance of setting uniform standards across state lines. Join a trade association related to these concerns.

2. Focus on consistency: When you are faced with a handful of different laws, try to use language that can be broadly applied across jurisdictions.

3. Talk to other companies: Many people and companies have found privacy regulations to be difficult. Getting ahead of the curve -- with the help of others -- will be beneficial for all.

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Key Takeaways

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• Competition and high-pressure environments start in law school. It takes a special kind of person to thrive in this industry.
• Develop a mindfulness and meditation practice to improve mental health as a lawyer.
• To improve your mental health, practice mindfulness, exercise, sleep and eat healthy and nutritious foods.
• Companies should prioritize their employee’s mental health in the workplace. Reducing burnout and stress will cut down on sick days and improve work efficiency.

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Resources Mentioned

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• Michael’s LinkedIn
• Headspace
• God Is Not Great: How Religion Poisons Everything
• Harry Potter and the Half-Blood Prince
• The BS Report
• AllTrails

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Michael Marchand is the Director of Legal Affairs at Headspace Inc.

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• He oversees the Headspace legal function. Key areas of responsibility include: Consumer Protection, Risk Mitigation and Conflict Management; Commercial Transactions; Data Privacy and Security; Intellectual Property; Corporate Governance; and Capitalization.

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The legal department at Headspace

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• There is a 50/50 split between transactional work and risk mitigation endeavors. Michael tends to focus on the risk mitigation endeavors while his associate corporate counsel leads most of the transactional work.

Mental health within the legal industry

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• The profession of law is a high-stakes and high-pressure career path. There are a lot of expectations you need to manage. Plus, you have to deal with judges and opposing counsel.
• The high-pressure ecosystem starts in law school. How you do academically will directly impact your career path. Your peers in law school will become your competition. Competition is not necessarily a bad thing; it is just intense.
• Litigation turns into putting pressure on the opposition and making their lives uncomfortable. Discovery can get incredibly petty. Michael has been in scenarios where the other side is trying to create leverage or apply pressure.
• It takes a particular personality to enjoy a high-pressure environment, or it takes a great deal of training to handle it.

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Advice for lawyers who are struggling with mental health

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• Develop a meditation and mindfulness practice.
• Headspace has 25 published studies that demonstrate the various positive effects of their platform.
• Exercise is a huge mental health tactic for Michael. He likes to make sure his exercise is fun. For example, he plays in a basketball league. It helps him blow off steam and reduce stress. The outcome from his basketball game will directly affect how he feels for the rest of the week. Sleeping well is also vital for anyone who struggles with mental health.
• Eat healthy and nutritious food.
• Socialize with people you care about. Michael makes sure to prioritize spending time with people he likes. It’s easy to take relationships for granted. The impacts of chatting and hanging out with people you love are beneficial.  
• Give back and dedicate time to improve the lives of others – it is such a great use of time, and it will make you feel fantastic. Headspace is always looking for opportunities to give back to the community. Our culture loses sight of the intrinsic benefits of giving back. Michael does not mean writing a check, roll up your sleeves, and do the work. Plus, it will help you take a step back from your problems.

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Putting employee wellness first in the workplace

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• Innovative companies realize that the workplace is the leading source of stress and burnout. Burnout will result in more sick days and higher employee turnover.
• Headspace has developed a Headspace for Work tool. Companies can purchase bulk subscriptions to hand them out to their employees. There are 500 companies on the Headspace for Work platform.

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Michael’s meditation routine

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• Michael does his first meditation when he gets out of the shower – it anchors his daily practice. The hairdryer will help calm and relax Michael’s mind. He sits on the ground and does a Headspace session.
• Later in the day, Michael has mindful moments where he is hyper-aware. He tries to do this at least ten times a day. It can be something as little as standing up or sitting down at his desk.
• When Michael is warming up to exercise, it’s the perfect moment to practice mindfulness.

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Advice for someone who wants to start meditating

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• Headspace is how Michael began meditating. It’s perfect for beginners who are curious about what meditation has to offer. It has a soft and approachable outlook in terms of introducing the practice.

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Key Takeaways

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• There is never a typical day for an early-stage startup in the legal department.
• The hours at a startup are more predictable than at a law firm.
• Switching industries can be challenging. However, remember that you were hired for your diverse set of skills.
• The in-house counsel of your competitors is surprisingly a great place to seek advice.
• Think of your role as a stakeholder – you can’t say no or yes to every legal question, you want your equity to increase.

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Links Mentioned

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• Book: Barbarians at the Gate: The Fall of RJR Nabisco
• Book: Race for Profit: How Banks and the Real Estate Industry Undermined Black Homeownership (Justice, Power, and Politics)
• Podcast: Comedy Bang Bang
• App: Slack
• Get in touch: nspaulding@hometap.com

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Intro

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• Noah Spaulding (@noahspaulding) is the Chief Legal Officer at Hometap.
• Hometap provides a solution for homeowners to be paid for the equity they’ve accumulated in their home without a loan.

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What a typical day looks like for Noah

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• There is never a typical day for an early-stage startup in the legal department. Noah is covering the full scope of the legal needs for Hometap.
• Noah spends a few hours in the morning meeting with the finance and marketing teams to see where their growth projections are.
• Then, Noah spends a few hours doing regulatory and statutory research. There is going to be a lot of state-specific research. Later, Noah can do transactional and contract research. What do the actual contracts look like?
• Later in the day, Noah will do the random items that come up. Depending on the needs of the company, he will work with the finance team on the capital side.

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The hours at an early-stage startup

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• Noah gets in at 8:30 and leaves at 4:30. Later in the day, he works remotely.
• The hours are not dramatically higher at a law firm. Noah says his hours are more predictable at the startup.

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Overcoming challenges

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• Shifting industries can be a daunting task.
• Noah felt like he was starting over from scratch.
• Eventually, Noah realized that the company hired him for a reason. He has a specific skill set and can handle the full scope of legal needs.
• “Have confidence in your skills and why you were hired.” - Noah Spaulding

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Seeking mentors and advice

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• When Noah has questions, there are a few different places he can go to. Friends, former coworkers, online communities, and the in-house counsel of their competitors.
• Why do people help their competitors? When it comes to legal matters, there is a lot more to be gained by collaborating and becoming resources for others.
• When answering legal questions, you need to trust your instinct and accept that you will not be right 100% of the time.

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Tips for first time GCs

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• You can negotiate discounts with outside counsel.
• Coming in as a new GC, it is a great time to reassess if they are using the right firms.

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Recommended resources

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• Conferences and newsletters are not a waste of time.
• Take the time to find newsletters that are going to be the most helpful for you.
• If you do not have a broader legal team, then you may not hear updates of the latest in your specific field.

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Non-legal skills needed to succeed as a GC

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• Understand that when your role changes, the way you see problems also needs to change.
• Businesspeople do not like working with outside counsel. Outside counsel is more conservative.
• Be comfortable thinking about your position as a stakeholder. If you want your equity to be worth more, then you can’t say no to everything.
• Noah identifies his own weaknesses, so he hires to fill them. He does not have a lot of experience in the real estate world, so he hired someone who does.

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