Be a smarter legal leader

FTX had secured billions in funding the very day it signed its Chapter 11 bankruptcy back in November. Or, at least that's what Sam Bankman-Fried, the now-notorious founder of the crypto exchange and its sibling company Alameda Research, a private hedge fund, was set to say to Congress in testimony.

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"Starting on November 8th, I was put under extreme pressure to file for Chapter 11," Bankman-Fried writes in the prepared testimony acquired by Forbes. "Most of that pressure came from Ryne Miller, the General Counsel of FTX US and a former partner of Sullivan & Cromwell (S&C), and Sullivan and Cromwell itself." Bankman-Fried goes on to detail a series of events in which S&C allegedly pressured the former CEO to rescind his duties and nominate John Ray as the new CEO. Bankman-Fried even claims a "potential funding offer for billions of dollars" was received within 10 minutes of filing for bankruptcy.

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• Of the tactics S&C allegedly used to pressure Bankman-Fried to file for Chapter 11, "they range from adamant to mentally unbalanced," he writes in the testimony statement. "They also called many of my friends, coworkers, and family members, pressuring them to pressure me to file, some of whom were emotionally damaged by the pressure. Some of them came to me, crying."

• Bankman-Fried never delivered these remarks as he was arrested in the Bahamas the day before he was set to testify before the US Congress.

• Sullivan & Cromwell has not commented on the planned testimony, according to Law.com.

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Not Guilty Plea

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Bankman-Fried is expected to plead not guilty on Tuesday before U.S. District Judge Lewis Kaplan in Manhattan, reports Reuters. Yet, FTX co-founder Gary Wang, and Alameda Research CEO Caroline Ellison have both plead guilty and are expected to cooperate with federal officials in charging Bankman-Fried. So why is he pleading not guilty? “It’s clear that the government is not going to be using him to cooperate against them, so he’s clearly working on something else,” defense attorney Jeffrey Lichtman told The Guardian. “Why else would the government consent to a bail package for public enemy No 1?”

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The Verdict

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Just as SBF played victim during his media blitz in November (“this was all an honest mistake”; “I didn’t know any of this was happening either”), he seems to be using a similar legal strategy still: claiming his previous lawyers pressured him into bankruptcy, and that he remains not guilty.

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Ashley Herd: How does parental leave foster a strong workplace culture, what was your experience?

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Meyling Ly Ortiz: While I was in private practice, I tried to hide my pregnancy as far as a could.

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Comparing that experience in-house, I certainly felt it was a lot easier in-house. When I brought it up to my manager I was almost instantly apologetic and began talking about creating a plan of the best next steps. My manager really set the tone by congratulating me, she didn't want to talk logistics and I felt a sigh of relief.

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I have a colleague who interviewed pregnant and she's still got the job. It comes down to company culture and Im lucky to work for a company like Toyota. One of my BFFs,  my old firm work wife interviewed pregnant at PepsiCo and got the job. So I think, I think the movement is there that it is no longer stigmatized, but it does start with leadership.

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Ashley Herd: I've done videos on parental leave and it's so interesting discussing the topic of announcing pregnancy because it's a real fear.

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Going back to what Deanna said about living that culture, it's so important for in-house teams to think about how they're reacting because so many people out there will never disclose their pregnancy until the absolutely have no choice because of the fear of getting their job taken away or not being hired.

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A question we just got that I think really plays into this is: How is parental leave navigated in a startup?

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When someone works for a startup, that consists of a small legal team a lot of the time there is no parental leave policy in place. So how does someone bring that up to the C-suite?

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Meredith Smith: It just needs to be brought up. At a startup there are many things that you just do not put in place until there is a circumstance that requires you to put it in place. This doesn't mean the company or the leadership team doesn't think they need one, It just hasn't been necessary yet.

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There's always going to be a first person and I remember the first person at Stash. We were in person and could all see she was pregnant so we all decided it was time for a parental leave policy. We researched what other company's did, hit up our network and came up with a policy. It has to be done and someone has to speak up.

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Ashley Herd: How do you prepare your whole legal team before taking leave and what was your experience?

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Meyling Ly Ortiz: Parental leave on our legal team at Toyota started with me. Based on the work and projects I still needed to get done, I accessed whether they should be paused or continued and then I proposed a plan to my manager.

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This was helpful in determining the workload and whether or not we needed to bring someone in, pause some of the work or have it be delegated amongst the team and because of our 12 week policy, it was very manageable.

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Ashley Herd: Deanna, how you fill in and support the rest of the team so that they're not feeling overburdened when that person's out on parental leave?

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Deanna K: In general it's a testament to the close collaboration of our teams on a normal everyday basis. When a team member does indicate that they will be taking time off for the birth or adoption of a child, we do try to divide up the work of the person who will be out in a way that it doesn't put a burden on any one particular colleague while that person is out.

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We try to establish a very open line of communication, throughout the chain of reporting.

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That's been successful for us and particularly if you look at the litigation side of legal, sometimes it's a little bit easier to anticipate what the upcoming deadlines are with the litigation schedule in place. We just try to be very agile and able to pivot when necessary. So far we've found it's worked as long as we  have open conversation and communication. If we have a very strong collaborative culture where people are open to talking about if they need help, then it helps to make parental leave situations go more smoothly as well.

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Ashley Herd: Meredith, when you are bringing someone in during that period of time what does that look like from a preparation standpoint and how have you made that successful in your work at Stash?

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Meredith Smith: I have a small legal team at Stash so we can't just add on to people who are already really close to a hundred percent capacity. So for me, it was really important to make sure that the people who were not taking leave on the team, weren't just picking up the extra work.

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‍It takes a lot of looking into each team member's role and trying to estimate what the scope of the workload looks like and what we can deprioritize.

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Then we started to determine what can the people at Stash who are non-lawyers do? Is there a workflow or a process we can put in place to assign HR do some of these things without us for a little bit? There's a lot of ways you can get creative but for me, at some point I really just needed people to do the work so I hired some temporary help from a couple folks at Lawtrades.

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We’re proud to report that we've added a new team member to Lawtrades! Meet Sadaf, our Senior Product Designer!

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Check out our interview of Sadaf and this edition of Meet the Team:

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Can you share two interesting facts about yourself?

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I have lived in two countries and four different cities.

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How do you like to spend your weekends?

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Hanging out with friends, if it's nice out going for a hike, if not reading a book under a blanket.

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What is the most unconventional job you ever had?

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Once our third grade teacher was sick and I was assigned to run the class the whole day. It was fun!

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Why did you choose to join Lawtrades?

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I was looking to join a smaller company, to come out of my comfort zone and to challenge myself in a more fast paced environment. After talking to the people here, I felt this is a great place to grow and learn.

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What are your primary responsibilities?

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Design the user interface and the user experience of both our web and mobile applications.

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What are you most looking forward to in this position?

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Collaborating with the team to come up with the best experience for our users.

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Where do you think you help the most in this position?

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Improving the user experience and hopefully helping both talents and clients use the app in a more efficient way.

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Community @ Lawtrades

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How Do Customized Talking Points For Each Contract Template Help You Win Better Deals?

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Hayley Gonzalez: In terms of what talking points you should use, it depends on the contract. We have customized talking points for each type of our templates.

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For Example if were signing a DPA separately are you the controller, processor or the business? This will determine how you can argue for using your paper.

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I would recommend working with the business and with your different counterparts. I'm on the revenue generating side, but I work very closely with our vendor side and commercial legal team.

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We share ideas all the time about how to argue against different counterparty arguments because we're hearing the opposing side's point of view and it really helps. Listen to the business and what they're hearing out in the field. They're on the front lines, so work with them to develop the talking points.

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What Is The Value Of Deal Thresholds In Commercial Contracting?

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Jasmine Singh: At Binti we built in conditional logic workflows that would trigger certain approvals based on answers that were given. We also built those workflows based on the legal review threshold, which when pressure tested changed.

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When suddenly budgets are being cut, you get less lawyers or can't afford to continue to add lawyers when scale happens.

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So those are the moments you make strategic decisions about what you will or will not review anymore. Then, you have to communicate that to the stakeholders and make it easy for them to make sure that those contracts are well done and well executed.

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Laura Frederick: Did you do that in advance of those ups and down, Is that something you did at a strategic level or was it more reactive as needed?

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Jasmine Singh: I would argue both. Going into any role, I sort of set a threshold to say, these are the contracts based on my current team that we're going to review, this is the reality of sort of the situation and this is the diligence.

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As frankly the economy changes and as the business changes, those are the triggers for changing those thresholds.

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Those are the moments you say, we're not looking at these contracts anymore. Business, you're so good at doing this yourself I've built you a workflow and all you have do is answer these questions, click to accept and send it to your counterpart. Now there's a lot less back and forth involved. So on the process side, I think there's opportunities.  

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We can leverage technology to really empower the business to do as much without legal as possible, which then reduces our need for overhead.

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On the people side especially when I was junior in house, I thought I had to do everything no matter how little I had. So I figured I'll do it all with nothing , and that will be my value proposition. That was not a great approach to doing more with less because that sets bad precedent. It also creates a dynamic where you're actually not empowering people in the business to do more.

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The reality of tech startups in particular is your counterpart teams are always going to scale and grow faster than legal is. It is in legal's best interest to make sure that those scaling teams are able to take on some of the responsibilities that rightfully should be with them in terms of how to do contracts and how to continue to scale.

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In today's fast-paced and increasingly digital world, more and more businesses are turning to digital platforms to find and hire lawyers. These platforms offer a range of benefits for businesses, from cost savings to increased efficiency and convenience.

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Here are The Top Five Reasons to Use a Digital Platform for Hiring Lawyers:

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1. Cost Savings

Hiring a lawyer can be a significant expense for any business. Digital platforms can help to reduce these costs by providing access to a wide range of lawyers at different price points. This can make it easier for businesses to find a lawyer who fits their budget and legal needs.

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2. ‍ Increased efficiency

Digital platforms can make the process of finding and hiring a lawyer much more efficient. Instead of spending hours or even days searching for a lawyer, businesses can use a digital platform to quickly and easily find a lawyer who meets their specific needs. This can save businesses valuable time and resources.

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3. ‍Convenience

Digital platforms offer the convenience of being able to search for and hire lawyers from any location, at any time. This can be especially useful for businesses that are located in remote areas or have employees who work remotely.

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4. ‍Access to a wider range of lawyers

Digital platforms provide access to a much wider range of lawyers than businesses would typically be able to find on their own. This can make it easier for businesses to find a lawyer with the right expertise and experience to handle their specific legal needs.

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5. ‍Improved communication

Digital platforms often include tools and features that can help to improve communication between businesses and their lawyers. This can include things like secure messaging systems, online document sharing, and real-time updates on the status of a case. This can help to make the legal process more efficient and transparent for both businesses and their lawyers.

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Overall, hiring lawyers through a digital platform can provide a range of benefits for businesses. From cost savings to increased efficiency and convenience, digital platforms can make it easier for businesses to find and hire the legal help they need.

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LawTrades is a digital platform that makes it easy for legal departments to find and hire lawyers. With Lawtrades, you can quickly and easily search for lawyers with the right expertise and experience to handle your specific legal needs. Plus, with a range of lawyers at different price points, you can find a lawyer who fits your budget.

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Sign up for Lawtrades today and start finding and hiring the legal help you need: https://app.lawtrades.com/join/client

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Charlotte Smith: Jacqueline what does leadership mean to you?

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Jacqueline Lee: I heard a great quote about leadership just recently when I was in New York at the American Lawyer Industry Awards, listening to one of the recipients of the Lifetime Achievement Award.

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The quote he shared was "Your title is what makes you a manager, It's your people that make you a leader" and I thought that was such a great quote because it's so true. A leadership mindset is really all about your people and how you are going to bring the best out of them. Making sure that they're in the right positions and that they have the tools they need to succeed.

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Even when im not at my desk I spend hours and hours thinking about my team. How I can support them, making sure they're in the right roles and have everything they need to accomplish all the goals that they have set out.

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It's one of the things that has made us successful in building a team, from two lawyers to 10 lawyers, and developing a reputation with our client of being a great team together.

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Charlotte Smith: Laura, I'm curious to hear your perspective on this.

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Laura Jeffords Greenberg: I see leadership as two different forms. First is leading the legal team by setting either a vision or mission for your team and ensuring that team members understand how their position rolls up into that greater mission, so they have a purpose.

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The second piece would really be about leading the legal function within the company. I look at that as branding the legal department. How are you interacting with the rest of the organization, how are you leading the vision and setting goals for certain topics that are within your purview?

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Charlotte Smith: John, what are your thoughts?

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John Pingel: When we talk about lawyers being leaders, it's a transition.

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As a lawyer, especially moving in-house the first thing that you find is there's a lot of "firefighting". There's issues that come up, How do you put out those fires on a day-to-day basis? Being a leader is being able to take a step back from that and seeing what you're actually trying to achieve.

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Longer term, how do you move beyond the day-to-day? I love the way Jacqueline phrased it of being all about your team because that's really where you find the space to do that.

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One of the key things especially working in-house, is to really understand the business and what the company priorities are.

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That's the baseline to being competent as an in-house lawyer. Being a leader is analyzing, establishing priorities, goals and then communicating them in a way that you're influencing other people to carry out their jobs.

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Laura Frederick: How do you manage workflow with your stakeholders at Flock Safety?

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Mike Molina: My stakeholders are the sales and marketing team, the people that are out on the streets selling the product and engaging with the community.

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Since this is doing more with less, let me tell you how it was when we were at the hundred people mark and considerably low tech.

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We started off as a small legal team just trying to make do and one of the secrets that we found was Slack has a workflow build out tool that is ingrained into their system. From that we were able to create a channel, add all the salespeople and they would receive a pop up dialogue box.

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Then they would be able to click a button where 5 choices would come up:

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1. Link me to the sales force
2. Link to the contract
3. What is the contract value
4. When do you need this by
5. What do we need to know

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We found this to be incredibly successful, incredibly free, very low tech in a way that the sales team was able to do more with less.

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As the global economy continues to navigate the uncertainty of the COVID-19 pandemic and the resulting economic recession, many businesses are looking for ways to cut costs and optimize their spending.

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For legal departments, one way to do this is by utilizing labor marketplaces to find qualified legal professionals at a lower cost. Traditionally, legal departments have relied on in-house counsel or law firms to handle their legal needs.

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However, during a recession, these options can become cost-prohibitive, as businesses may not have the budget to hire full-time in-house counsel or pay the high hourly rates of law firms. Labor marketplaces, on the other hand, offer a more cost-effective solution.

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These platforms connect businesses with qualified legal professionals who are available on a freelance or contract basis. This allows legal departments to find the legal support they need at a lower cost, as they only pay for the hours worked and do not have to pay for benefits or other overhead costs associated with full-time employees. In addition to cost savings, labor marketplaces also offer flexibility and access to a wider pool of legal talent.

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Legal departments can quickly and easily find legal professionals with the specific skills and experience they need, and can easily scale their legal team up or down as needed.

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This can be especially beneficial during a recession, when legal needs may fluctuate due to changes in the business environment. Additionally, labor marketplaces provide legal departments with a greater level of control over their legal spend.

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Legal departments can set budgets and track spending in real-time, allowing them to monitor and adjust their legal spend as needed. This can help legal departments avoid overspending and ensure they are getting the most value for their money.

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In conclusion, utilizing labor marketplaces can be an effective way for legal departments to optimize their legal spend during a recession. By leveraging the cost savings, flexibility, and control offered by these platforms, legal departments can find the legal support they need without breaking the bank.

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Lawtrades is the all-in-one platform to help you find, hire, and manage flexible legal talent.

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Fill key legal roles, monitor work activity, and manage spend.

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‍Get matched to free candidates today: https://www.lawtrades.com/join/client

Data privacy lawyers are attorneys who specialize in helping individuals and organizations protect the privacy of their personal and sensitive information. They are experts in the complex legal landscape surrounding data privacy, and can provide valuable guidance on a wide range of issues related to this important topic.

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One of the key roles of a data privacy lawyer is to help clients comply with various laws and regulations that govern how personal and sensitive information is collected, used, and shared. For example, the General Data Protection Regulation (GDPR) in the European Union, and the California Consumer Privacy Act (CCPA) in the United States, are two of the most significant pieces of data privacy legislation in the world. These laws place strict requirements on businesses and organizations that collect, use, or share personal data, and non-compliance can result in significant fines and penalties.

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Data privacy lawyers can help organizations navigate these complex legal requirements by providing advice on best practices for data collection, storage, and sharing, as well as by developing comprehensive privacy policies and terms of service. They can also represent clients in legal proceedings related to data privacy, such as disputes with regulators or lawsuits brought by individuals who feel their privacy rights have been violated.

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In addition to helping organizations comply with data privacy laws, data privacy lawyers also play a key role in advising individuals on how to protect their own personal information. This can include providing advice on how to manage privacy settings on social media platforms, how to avoid scams and identity theft, and how to deal with data breaches and other privacy-related incidents.

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Overall, data privacy lawyers are an important resource for anyone who is concerned about protecting the privacy of their personal and sensitive information. Whether you are an individual looking to safeguard your own privacy, or a business or organization looking to comply with data privacy laws, a data privacy lawyer can provide valuable guidance and support.

When it comes to hiring your first in-house commercial contracts lawyer, there are a few key things to look for in order to ensure that you find the right person for the job.

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First and foremost, you want to find someone who has experience in commercial contracts law. This may seem like a no-brainer, but it’s important to find someone who has a deep understanding of the legal complexities involved in drafting and negotiating commercial contracts.

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In addition to experience, you should also look for someone who is a good fit for your company’s culture and values. A good in-house lawyer will be able to work closely with your team and understand the goals and objectives of your business.It’s also important to find someone who is proactive and able to anticipate potential legal issues before they arise. A good in-house commercial contracts lawyer will be able to identify potential problems and offer solutions before they become major issues.

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Finally, you want to find someone who is a strong communicator. A good in-house lawyer will be able to clearly and concisely explain complex legal issues to both legal and non-legal audiences, and will be able to effectively negotiate on your company’s behalf.

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In conclusion, when hiring your first in-house commercial contracts lawyer, be sure to look for someone with experience, a good fit for your company’s culture, proactive, and a strong communicator. With the right person in place, you can be confident that your company’s legal interests are well-protected.

Speed and accuracy make strange bedfellows but, when it comes to commercial contracting, you have to find a way to do both. This is especially difficult when every department but legal is scaling fast (sigh). If you don’t have an army of contract lawyers, you can still stay speedy without letting anything fall through the cracks. How you ask? We got all the answers to that question and more at our latest event which was moderated by the Founder and CEO of How to Contract, Laura Frederick.

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Contracting wizards Jasmine Singh, General Counsel at Binti, Jonathan Franz, Associate General Counsel (Head of Legal) at Crunchbase, Hayley Gonzales, Director, Commercial Counsel at Affirm, and Mike Molina, Vice President, Legal and Deputy General Counsel at Flock Safety, shared their hacks for doing more with less.

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ICYMI, here are our top 5 takeaways.

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🏋️ Set the bar high

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In an ideal, super-risk-resistant world, every contract would be reviewed by the legal department, but that’s not always an option. Luckily, it’s also not necessary. Doing more with less is all about prioritization. Step one is to set a legal review threshold. Figure out which contracts score high on both riskiness and the likelihood of that risk actually happening. These are the contracts that legal needs eyes on. Or you could choose only to review contracts that are above a certain monetary value.

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Everything else? You have to empower your business stakeholders (e.g. sales, marketing, procurement) to take care of as many contracts as possible on their own. If letting things go unchecked makes you feel a little queasy, remember that you can use training, automation, and well-crafted templates to create guardrails that keep stakeholders on the straight and narrow.

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The review threshold shouldn’t be set in stone. If sales are booming and contracts are pouring in but legal’s budget hasn’t changed, the bar will have to get a little higher. If there’s money for a few extra contractors, maybe it drops.

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Lastly, you can’t sweat the small stuff. Rumor has it there are a few A-type personalities in the legal profession. But, in the contracting game, a minor font size discrepancy definitely does not make the cut for things that need your attention.

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🍰Make life crazy-easy for your stakeholders

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If you’re going to trust other teams to deal with contracts you need to make it super easy for them to a) get it done on their own and b) escalate where necessary.

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Here’s how our panelists create freedom within a framework for their stakeholders:

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• Prepare top-notch documents.
  
  From templates, customizable statements of work, and MSAs to negotiation guidelines, make your docs watertight and easy to find.

• Automate what you can.
  
  If you have access to a tool that offers conditional logic, you can set up “if x then y” rules that spit out the right output when your stakeholders enter the details of the deal. It’s a guardrail and a timesaver in one.

• Streamline the review request process.
  
  Create a system that guides stakeholders to provide as much info as possible upfront so that there is less back-and-forth once their contract gets to legal. It could be as simple as a Google form that asks “When do you need this by?” and “What is the contract value?”
  
• Make it less lawyery.
  
  Ditch long, hard-to-read training docs in favor of FAQs, an internal wiki, office hours, and quick videos. Use storytelling, analogies, and plain language to make things digestible.

• Get design involved.
  
  If it’s pretty, people are more likely to read it. And it’s more digestible.

🖥️ Get a CLM (or make do)

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We’d love to say that you can create a hyper-efficient contracting production line with just a pen, an abacus, and a twinkle in your eye but the reality is that great (expensive) tech makes a huge difference. If you can afford it, get a CLM. A tool like Ironclad offers, among other features:

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• Conditional logic
• Integrated redlining
• Minimal touchpoints

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If you don’t have the resources for a CLM, you can make do with more budget-friendly solutions. You could use Slack to build out a channel where sales can request contract reviews or utilize Monday.com as a makeshift CLM. Get creative with Google Sheets and Forms.

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🤖 Be a human

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Just because you’ve created a world-class contracting process with the perfect balance of risk and speed doesn’t mean sales are going to be onboard. There will probably be at least one person who doesn’t give a fig about your protocols if they stand in the way of a sale or take time to learn.

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Here are 4 techniques for getting buy-in from your internal stakeholders:

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1. Be visible.
   
   Make sure legal is seen as a group of humans who are active in the business, not some mystery department sending down commands from an ivory tower. Delivering training via video call instead of email is one good example.
   
2. Get change management right.
   
   If you’re introducing new tech or processes, do loads of cross-functional engagement before (and during) your launch. Get the heads of sales and procurement on board. Get their sign-off. Show them the training in advance. Let them be advocates for your plan.

3. Highlight the benefits.
   
   Salespeople care about time. Because time is money. If you can show how a new system will ultimately speed up the journey to signatures on the dotted line, sales will be all over it. More transparency in the contract pipeline is another thing that helps everybody out. Push the message that legal is there to facilitate other departments’ needs.
   
4. Try the carrot.
   
   There is one thing that is tried and tested when it comes to motivating salespeople: incentives. If speed, efficiency, and safeguarding aren’t incentives enough, then cash-based incentives might do the trick. Just make sure you think through any possible unintended consequences first.

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📃 Get ‘em on your paper

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So you’ve spent ages crafting templates that meet the business’ needs and shelter it from risk. And you’ve got a tech stack built out that means the whole thing is signed, sealed, and delivered in a matter of clicks. Job done, right? Well, not necessarily. The counterparty may come along and say that they want to use their own darn contract. That means more work for legal and a slower deal. So how do you persuade the other side to use your paper?

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Here are our panelist’s suggestions:

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• Emphasize how your contract is custom-made for your product.
• Create talking points to help your business folks do some sweet-talking.
• Make redlining a breeze.
• Leverage the power dynamic (if it's in your favor).
• Get tips from business folks in your company who are usually on the other end of the deal.

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Enjoy these recaps? Share them with your network!

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Unfortunately, legal isn’t always about laying down slick one-liners in court or winning million-dollar settlements (thanks, Suits). At the beginning (and end) of the day, legal’s job is to protect the company. And, one thing the legal department definitely does not want is for the company to do something illegal or fall foul of regulations. But with a constant avalanche of new rules and requirements, different frameworks in different jurisdictions, and C-suites with shallow pockets — the compliance function is not easy.

We spoke to Natalie Hallerby, Head of Compliance at Found, Adam Van Wagner, Chief Legal Officer at MoneyLion, and Andria Jones, Head of Legal Compliance at Cloudflare to pick their brains on planning out a compliance strategy, who to hire first, and when to use outside counsel.

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ICYMI, here are our top 5 takeaways.

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🥣 Can I have some more please, C-Suite?

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3:35 – 6:19

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As you know all too well, legal is often seen (incorrectly) as a money vacuum. Compliance is no different. So how do you get the budget to get stuff done? You need to make the case that putting a good compliance team in place is going to:

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• Protect the business.
• Create savings down the road.
• Help the company build better products.
• Create new business opportunities.

It could make it possible to do things that generate revenue like:

• Get government contracts.
• Build out data centers safely.
• Partner with banks.

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🐘 It’s just like eating an elephant

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6:20 – 12:12 & 21:16 – 24:09 & 46:08 - 49:14

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Building a compliance team is a daunting concept. It’s less scary if you think about it like eating an elephant: you have to do it piece by piece. So where do you start? To design your strategy:

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1. Figure out who your regulators are.
2. Take an inventory of regulations that apply to you.
3. Identify your highest-risk processes (you’re a lawyer after all).
4. Ask yourself: How do we mitigate this?
5. Tailor your solution to your company.

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If you’re in fintech, you’ll probably need someone who knows about the Bank Secrecy Act and, well — money laundering. Some candidates will be better suited to the mayhem of the startup environment while others will have what it takes to navigate a huge corporation.

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Your perfect hire might be:

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• An attorney.
• A non-attorney compliance expert.
• A program manager.
• Someone internal who knows the business well.

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You need a good ratio of operational people to people with specialist knowledge. For your second hire, you may want someone who can do the work you’ve been farming out to outside counsel, a regional expert who can help you move into a new jurisdiction or a slick administrator.

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If you can’t find good talent, think outside the box. If someone is good with data, collaborating with other departments, and building systems, you can always teach them about compliance.

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🧂 Sprinkle outside counsel sparingly

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12:12 – 21:15 & 24:09 – 29:51

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No matter the size of your team, an $800 bucks/hour bill – as Will Ferrell would say – gets you right in the jejunum. Outside counsel is as expensive as it is essential. They’re particularly handy for:

‍

• Explaining regional regulatory systems.
• Taking on work you don’t have the bandwidth for right now.
• Specific areas like tax.

‍

But sometimes it’s better to bring things in-house. If something is part of the day-to-day operations of your business and will be around for the long term, you probably want to do it internally. You can always get outside counsel to show you how it’s done first but ideally, they should be an intermittent resource.

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Also, you’d be wise to do the math. Work out the cost of outside counsel vs a new hire or a freelancer (ahem) and figure out what’s most cost-effective. Hint: there’s a good chance a freelancer is the most cost-effective option. Plus, hiring a freelancer is a great way to test out the possibility of a new hire.

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If you do need outside help, don’t assume you need a top-tier firm. Instead, look for a firm or staffing agency (ahem, ahem) that specializes in your problem. Networking is a great way to get outside counsel recommendations (and advice on all kinds of things). You can build your community by:

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• Attending trade shows and conferences.
• Getting in touch with a compliance association.
• Interacting with other compliance pros on LinkedIn.

🚧 Be a crossing guard, not a roadblock

‍

41:18 – 46:01

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In an ideal world, compliance should be involved in every part of the business. But, just like teens with strict parents, if people see you as the folks that always say no, they’re going to jump out the bathroom window after you go to bed. You need to build trust and let people know that you’re a resource … someone who can help them get stuff done. We won’t sugarcoat it - getting cross-departmental buy-in is tough. But you can put your best foot forward by:

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• Having a collaborative attitude.
• Saying “here’s how” instead of “no” whenever possible.
• Hiring nimble, friendly people.
• Understanding other departments’ goals.
• Creating accessible “how to” documents.
• Offering training, like a workshop updating HR on hiring regulations.

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You should also think about sitting in on different departmental meetings or getting involved early on in the lifecycle of new products or marketing campaigns.

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👀 Keep an eye on new regulations

‍

36:52 – 41:18

‍

Just like the seasons (or interest rates at the moment) regulations are constantly changing. Your team should keep on top of the news and know what’s coming down the pipeline. But sometimes that’s not possible without a crystal ball — like when lockdowns are announced or Putin invades Ukraine.

‍

You can react to sudden regulatory changes by:

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• Watching how other affected companies react.
• Taking advantage of free advice put out by law firms.
• Having a conversation with the regulator.

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It usually doesn’t make sense to hire someone new to deal with a regulatory change until you can work out how much of an impact it’ll have on your business. In the meantime, leverage outside resources like outside counsel, compliance specialists, and freelance legal pros.

Enjoy these recaps? Share them with your network!

‍

‍

You’ve heard the hype. Legal ops is transforming the legal department and making a positive impact on just about every other department too. But how do you get started? How will legal ops fit into your team? And will the C-suite buy in? Whether you’re looking to make your first legal ops hire, or you’re interested in a career in legal ops, we’ve got answers for you.

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In our latest panel discussion, moderator Eric Frank, Legal Ops Consultant at Lawtrades, spoke with Janine Dixon, Legal Operations Manager at Meta and CLOC Washington DC Regional Group Leader, Neshade Abraham, Global Head of Legal Operations at Etsy, and Cindy Kaneshiro, Director of Legal Operations and Chief of Staff at Nutanix. They shared a ton of wisdom and practical advice.

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In case you couldn’t make it, here are our 5 key takeaways.

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💼 Know your business

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‍3:42 – 8:55

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Legal ops can only be successful if it aligns with the priorities of the biz. Take note – it’s good to water the lawn but not when the house is on fire. There’s also a good chance that you’ll be short on resources so you’ll need to figure out how to optimize what you have.

Here are seven steps for developing a legal ops strategy:

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1. Get to grips with the business goals for the next quarter, year, or even five years.
2. Have a tight hold on your own departmental goals.  
3. Meet with stakeholders and understand their pain points.
4. Ask attorneys to estimate how long they are spending on different administrative tasks (But don’t try to get them to record their hours. That’ll go down like a concrete dinghy).
5. Check for redundancies – multiple people responsible for tasks that only require one.
6. Look around and see where there’s room for improvement.
7. Take a peek at the 12 functional areas of legal ops, according to CLOC, the Corporate Legal Operations Consortium, and decide which one/s to prioritize. These include things like financial management, technology, and program/project management.

💸 Pay the bills and they’ll love you

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30:47 – 36:55

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Cue Pink Floyd, ABBA, and The Notorious B.I.G. because it’s all about the money. All of our panelists said they recommend a legal billing specialist as your first legal ops hire. Along with that, your first legal tech buy should be a billing system. Why? Because you’ll very quickly be able to show your attorneys and your C-suite the tangible financial benefits.

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These include:

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• Attorneys wasting less time doing billing admin.
• Statistics on what is handled internally vs externally.
• Better enforcement of outside counsel billing guidelines.

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All of this can translate into savings that will help you get buy-in for your next hire. Another possible option for your first hire is a legal ops jack-of-all-trades (or Jill, or Zainab) — someone who can address a variety of problems. This is particularly good for fast-evolving, dynamic teams.

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When it comes to the type of person you should hire, there’s no one answer. Paralegals, attorneys, and project managers all make good legal ops pros depending on the skills you need. It’s an advantage if they understand attorneys, their gripes, their attitude to change, and what makes them tick.

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For your second and third hire, you’ll need to assess the team and your overall strategy. You could consider someone to deal with:

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• Outside counsel spend optimization
• Technology
• Contracts
• Project management

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🗣️ Speak their language

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8:55 – 22:17

‍

Having all the answers is pointless if you can’t communicate those ideas and get both attorneys and the C-suite to buy in (not to mention give you some budget). The first step is making sure that the legal team feels included in the decisions that are happening and that their problems are being addressed. The next step is to take your strategy on a roadshow. If you can show attorneys that you’re taking something off their plates, their faces will light up like a kid at Christmas. The same goes for the C-suite and anything you present that will save them money, free up resources, or improve efficiency.  

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Use any data you can gather to back up your case (CLOC resources help here) and make sure you’re talking their language. If the C-suite loves to talk about data-backed decision-making or ROI, use those terms. Think about what they care about. For example, can you get contracts moving faster, automate NDAs, streamline billing, or shorten SLA time? Tell them how that will help the business reach its goals. It will help if you can situate the ops team so that they report directly to the GC. That way you’ll have top-down buy-in from the get-go.

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Of course, all of this is not a once-off process to get the legal ops function off the ground. You’ll need to keep showing off your value, taking the pulse of what the department needs, and demonstrating your impact with data. That being said, be careful not to overcommit or promise things you can’t deliver. You’ll regret it later.

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🏈 Go long

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22:17 – 27:30 & 41:06 – 43:23

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Once you get the legal ops function off the ground, you can start to think about the long term. It’s good to have an ambitious strategy that aligns with the business but you do need to be flexible. Something new could pop up that requires loads of outside counsel. Remember that little blip that started in March 2020 and had everyone pivoting? Things can change in a heartbeat. You’ll constantly be balancing triage with working towards a loose long-term vision. Keep checking in with all the stakeholders so your strategy stays current.

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As part of your long-term strategy, make sure that you are developing your legal ops (dream!) team and facilitating their growth. The more skills and experience they can gain, the stronger they’ll be in the future.

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With time, legal ops will also start to build cross-function with other departments. Sales, finance, and marketing will all have interactions with legal ops and probably use you as a conduit to interact with (intimidating) attorneys. So make friends. You’ll need them.

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👫 Don’t be a stranger

‍

46:23 – 51:45

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You might be the only person pushing for the ops function in your business, or perhaps you’re the first legal ops hire and you’re trying to figure it all out. But that doesn’t mean you’re alone. The legal ops community is full of helpful, friendly people who have been in your shoes. So reach out.

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CLOC should be your first port of call. They have useful resources and events as well as an active messageboard with a search function for quick questions. There are also smaller networking groups like Link, ACC Legal Operations, and the Legal Value Network. You can build your network via LinkedIn or even start your own regional legal ops group.

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If you can’t find what you need through networking, there are also consultants and experienced legal ops freelancers you can bring on board to help you get going (hello, there 😀).

‍

Finally, don’t forget to pay it forward and offer your wisdom to others once you’re a pro.

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Enjoy these recaps? Share them with your network!

‍

‍

👋 The team at Lawtrades

P.S. we’ve been working on something huge. If you’d like to download an exclusive, practical guide on how to build and scale your legal ops function from the ground up … register for the waitlist here.

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The past couple of years have been a wild ride, and it’s been amazing to see the world reimagine the way we work and live. Some of us moved out of cities, some moved across the country, some of us jumped out of planes (or was that just me?) and many of us took a closer look at our current job situations.

‍

From the Great Resignation to the Great Reshuffling to today, it seems like we’ve finally settled into a new understanding of what work can – and should – look like moving forward.

‍

This reckoning has been no different for the legal industry. As law firms struggle with staffing shortages, and the majority of lawyers under 40 are looking for new opportunities, we’ve seen a windfall of interest in a new, better way to be lawyer.

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Our community now includes over 2,000 highly-skilled legal pros who have logged nearly 150,000 hours and earned $16+ million in wages. As they continue to prove themselves and the power of this model, our client roster has jumped to more than 100 companies – including Epic Games, Airbnb, Pinterest, etc. I’m also so proud to say that in August, we hit a monthly revenue record of $1 million – and it could not have been done without this dream, between all of us, to imagine something better for the legal industry.

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To further build on our mission to make work as convenient and transparent as possible for Lawtraders and clients alike, we’re super excited to announce the launchof a new Lawtrades mobile app that simplifies our experience even more.

For Lawtraders, the app makes it simpler than ever to find the next gig and crush it – whether it’s exploring job opportunities on the way to the gym, setting project hours during morning coffee, or submitting invoices on the way to the airport. And for clients, managing projects and collabs with Lawtraders just got even easier.

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Just like our platform overall, the app works around your life, rather than work dictating it.

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It’s on Google Play and in the App Store now, so check it out.

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Also, keep an eye out for an article about us in Fast Company (once they’re no longer under siege by hackers) and take a look at our new and refreshed website. Lots of good stuff happening.

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I can’t wait to hear what you think.

– Raad, CEO

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‍

If you think LinkedIn is just a place to store your resume, then you’re missing out. There’s a whole world of legal pros engaging in fun, meaningful, and professionally beneficial interactions online. How do you get involved? We’re glad you asked. We spoke to Heather Stevenson, GC at Red Cell Partners, Kyle Robisch, Litigation Associate at Bradley Arant Boult Cummings LLP, and Brittany Leonard, Chief Corporate Counsel at Civix, about their online community-building journey and their best tips for building your own.

‍

In case you couldn’t make it, here are our top 5 takeaways.

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💬 It’s all about the comments

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2:49 – 9:08

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If Netflix documentaries have taught us anything, it’s that we shouldn’t trust people we meet online. When it comes to professional networking, however, we wholeheartedly disagree. The pandemic accelerated a shift from in-person to online events and interactions and revealed that - as it turns out - you can make real, authentic connections through platforms like LinkedIn.

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These connections can lead to:

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• Thoughtful online conversations about your industry
• Stronger bonds with coworkers
• Offline friendships
• New clients
• Employment opportunities

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Being online can also expand your network geographically, from just the same old faces you see in the office or in court to like-minded people all over the world (Psst … they don’t even have to be lawyers).

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But if you want meaningful discussion and real connections, clicking that like button just won’t cut it. And lurking silently will get you about as far as hiding behind a pot plant at a conference. So dive into the comments and get talking.

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😡 Your boss will love it … or maybe not

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13:45 – 22:10

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It’s fair to say there are a few partners and CEOs out there who’ve been around longer than Stephen Breyer and wouldn’t know a TikTok dance challenge if it cha-cha-slid right into them. So it’s understandable if you feel a little apprehensive about how they’d react if you became the next Alex Su.

‍

Here are 2 things to think about:

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1. Suss out the vibe

‍

There’s a good chance your boss and coworkers will love your witty Tweets and hilarious gifs but some firms and companies think it’s unprofessional to share anything other than news articles, press releases, and promotion announcements (yawn). Gauge your environment. No meme is worth losing your job over (or if there is one that good, send it over to us stat).

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2. Think before you post

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Even if the CEO puts your memes in his Powerpoint presentations, proceed with caution. Steer clear of talking about real cases, clients, and colleagues in a way that makes it obvious what you’re referring to. If you make a joke about an anonymous paralegal who recently returned from maternity leave, chances are they can join the dots. When in doubt, leave your draft to one side overnight and make a call in the morning. The same goes for comments. If you do want to call someone out, be prepared to live with the consequences.

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🙅  Forget the haters

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24:05 – 32:30

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Posting online can feel a bit like public speaking. You might be nervous about what people think about you. The truth is, if people aren’t interested in your content, they’ll probably just ignore it — which is really not so bad. There will be others who relate to your message and, if you keep posting, those people will find you.

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The bigger you get, the more criticism and negative comments you will attract. Most of us focus on negative feedback, even if it’s only 1% of what’s coming our way, but try to keep your attention on the likes and positive comments. Besides, going viral and getting lots of followers is not the most productive goal. Focus on finding and nurturing the right audience and creating real engagement, even if that means you have a smaller network.

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🛀 Get personal?

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48:07 – 53:36

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People connect to content that feels personal and authentic. Those are pretty vague terms but the long and short of it is that generic, corporate stuff, buzz words, and cliches aren’t particularly relatable. That being said, you don’t necessarily need to get personal personal i.e. photos-of-the-kids-in-the-bath/update-on-your-IBS personal. Digital marketing experts will tell you to pepper in personal content with your professional stuff but that could just mean a photo of your home office setup or an anecdote about your career.

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Ultimately, it’s your choice. You can establish ground rules for yourself, like no photos of your significant other, or you can set up separate social media accounts for personal content. Maybe you’re happy to share it all. Either way, remember to think about safety. It’s not smart to share your current location, for example. And if you share information about someone else, be mindful of their privacy.

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📬  Just post it, already!

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22:09 – 24:05

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Don’t wait around until you’ve thought of the perfect post. You don’t need to share a deep, original insight or a genius joke. Just get started. It’s easier than you think.

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If you don’t know where to begin you can:

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• Try out popular formats such as “Here are 3 things you probably don’t know about me.”
• Share a bugbear, a memory, or an interesting statistic.
• Talk about something that happened this week at work.
• Praise a colleague.
• Create a poll.
• Comment on the news.
• Share a quote from a Lawtrades event or Deep Dive.
• Turn your skills and knowledge into some quick tips.
• And don’t forget to get involved in the comment sections on other people’s posts.

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So what are you waiting for? Get networking.

‍

Enjoy these recaps? Share them with your network!

‍

👋 The team at Lawtrades

‍

It’s hard to find someone with as much longevity in the public sphere as former President Donald Trump. From scandals involving pornstars, tax fraud, and profiteering off foreign governments to claims of election interference and, most significantly, allegations that he incited an insurrection — the 45th has had no shortage of controversial headlines and potential legal downfalls.

As you most likely know, Trump is facing an investigation into presidential records found at his residence at Mar-a-Lago. Potential jail time is not out of the question. His lawyers are calling it a “document storage dispute that has spiraled out of control.” While we don’t know exactly what the FBI found in his basement, we do know that this is not just a case of cool mementos (like White House dinner menus) getting mixed up by the movers. The stakes are much higher. The government asks if state secrets were made vulnerable and investigators actively misled.

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For legal pros, it will be fascinating to watch the country’s political future play out in the courtroom in a case that is a major test of the legal system’s impartiality. Here’s a close look at everything that’s happened so far, the legal arguments at play, and what it could mean for the in-house legal department.

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Lost in the Move

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When Trump left office in Jan 2021, he took a number of boxes from the White House to his home at the Mar-a-Lago Club, a sprawling estate and exclusive members club in Palm Beach, Florida. The former president is known to have treated Mar-a-Lago as an extension of the White House. He entertained world leaders there and even approved a military strike from the estate (just your typical holiday home activities).

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Living in 2 states seems to have complicated his already dodgy approach to filing. Former aides say “a small storm of paperwork often followed him wherever he went.” Politico reported that Trump regularly tore up papers when he was done with them. In the hours before he left the presidential palace, aides say there was a mad rush to get everything Trump wanted packed up.

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Being disorganized may be an irritating trait but it isn’t against the law. What is illegal is mismanaging government records. The Presidential Records Act (PRA) makes it pretty clear that official presidential records:

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• Are the property of the United States and not the private property of the President.
• Must be stored separately from the President’s personal records.
• Automatically transfer into the legal custody of the National Archives and Records Administration (NARA) when the President’s term ends.

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In May 2021, NARA noticed that some presidential records were missing and reached out to Trump’s team. They went back and forth for months. It wasn’t until this January that NARA was able to recover 15 boxes from his estate, containing “dinner menus, letters, a cocktail napkin, briefing papers — the archival equivalent of a yard sale” as well as records marked as “classified”.

‍

The Investigation: Full Chronology (so far)

‍

If you’ve managed to miss the headlines, frankly, we’re impressed. The details are a little harder to keep track of. Let’s dive into exactly what happened and when.

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May 11 – The DOJ issues a subpoena for all classified documents at Mar-a-Lago.

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May 16-18 – The FBI reviews the recovered boxes and finds “184 marked classified, 67 marked confidential, 92 marked secret, and 25 marked top secret.”

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May 22 – A former White House aide claims that Trump declassified the documents.

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May 25 – Trump’s attorney, Evan Corcoran, tells the DOJ in a letter, that:

• Certain secrecy laws do not apply to the president.
• Trump had “absolute authority to declassify documents.”
• Criminalizing Trump in this case “would implicate grave constitutional separation-of-power issues.”

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He does not actually say that the documents are declassified.

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June 3 – The DOJ Chief of Counterespionage meets with Trump’s lawyers. Corcoran surrenders a folder of classified documents. A member of Trump’s team provides a signed declaration that says that a search has been conducted and all official documents have now been returned.

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June 22 – The DOJ subpoenas security footage from Mar-a-Lago. This footage along with witness testimony is enough to justify a search warrant.

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Aug 8 – The FBI raids Mar-a-Lago and 26 boxes are recovered including 25 sets of material marked as classified.

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Aug 9 – Republican politicians denounce the raid. Trump calls it “prosecutorial misconduct” and the “weaponization of the justice system.” There is a spike in Tweets mentioning “civil war”.

‍

‍

Aug 11 – A man wearing body armor tries to breach an FBI field office and is shot dead by police. Investigators suspect he was present at the Jan 6 Capitol attack.

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Aug 22 - Trump’s lawyers ask the judge to appoint an independent arbiter, known as a special master, to review the seized documents to identify any protected by executive privilege.

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Aug 26 – A redacted affidavit is released which confirms that Trump stored national defense records at Mar-a-Lago.

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Aug 30 – Following a tussle in court, a 36-page DOJ court filing is released, revealing evidence of a “likely” effort to hide classified documents and mislead investigators. It includes a photograph that shows documents with top secret markings spread out on Trump’s floor. His supporters claim the photo is staged.

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Sep 5 – US district court judge Aileen Cannon, a Trump appointee, grants Trump’s request for a special master and halts the FBI review of the documents for the criminal investigation.

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Sep 6 – Former Attorney General Bill Barr says Cannon’s ruling is “deeply flawed”. Others describe it as political.

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Sep 8 – The DOJ asks for a stay on the Judge’s order to halt the review of the records.

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Sep 15 - Judge Cannon approves Senior Judge Raymond Dearies as special master and gives him until Nov 30 to conduct the review. He is widely regarded as a fair choice. The DOJ’s request to resume the criminal review of the documents is rejected.

What’s next? The government is currently fighting to exclude 100 classified records from the special master review. Here’s a head-scratcher: the special master has said that the government cannot rely on the fact that the documents are marked as classified to prove that they are in fact classified.

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The Warrant

Investigators are looking for evidence of violations of 3 laws:

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1. Section 793 of the Espionage Act relates specifically to defense information. This law covers the stuff we typically associate with espionage (i.e. passing defense secrets on to foreign nations), but the bit the DOJ is likely interested in says that whoever has lawful possession of a national defense record and “through gross negligence permits the same to be removed from its proper place of custody…or to be lost, stolen, abstracted, or destroyed” shall be fined and/or face up to 10 years in prison.

2. Section 2071 of Title 18 of the U.S. Code says that “Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys” any government record shall be fined or imprisoned for up to three years, or both.” In addition, those who break this law “shall forfeit his office and be disqualified from holding any office under the United States.”

3. Does that mean Trump could be barred from running in future elections? Probably not. According to The New York Times, if he were convicted under 2071, voters or rival candidates could challenge his eligibility but ultimately Trump has a case that disqualification from office is unconstitutional.

4. ‍Section 1519 of Title 18 of the U.S. Code (aka the anti-shredding provision) is one of 21 different federal crimes relating to obstruction of justice. It’s part of the Sarbanes-Oxley Act which was enacted following the Enron and Worldcom scandals. Section 1519 states that anyone who knowingly conceals a record “with the intent to impede, obstruct, or influence” an investigation shall be fined and/or imprisoned for up to 20 years. The declaration signed by Trump’s representative will likely be important evidence, as will the security footage.

‍

None of these laws specifies the classification status of the records.

‍

Trump’s case

‍

It’s still early days but several arguments have already been put forward by Trump’s team.

‍

Personal and privileged

‍

Two claims have been made about the nature of the documents at Mar-a-Lago. The first is that they are personal, or at least that Trump has the power to deem official documents his own personal property. The second is that the records are protected by executive privilege, “a doctrine that permits the president and executive-branch officials to shield some of their records from the other branches of government (Congress and the courts).”

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The DOJ says that Trump’s team has contradicted itself. Personal items are never protected by executive privilege so they can’t have it both ways. Plus, the PRA makes it pretty clear that presidential records are not personal property. What’s not yet clear is whether former presidents are protected by executive privilege once they are no longer in office.

‍

Can a president declassify documents via thought?
‍

‍

Trump’s lawyers claim that a president has the power to declassify documents. Trump himself said he had a “standing order” that documents moved to Mar-a-Lago were automatically declassified (a claim White House staff deny).

Well, it turns out presidents can declassify documents. But experts say that the idea of declassifying documents without informing the relevant people, putting that action in writing, or changing the classification markings on the documents is “borderline incoherent.”

‍

Bill Barr says that if Trump simply “stood over scores of boxes, not really knowing what was in them and said, ‘I hereby declassify everything in here,’ that would be such an abuse and that shows such recklessness that it’s almost worse than taking the documents.”

‍

Either way, the state’s case doesn’t rely on the documents being classified.

‍

The DOJ is partisan?

‍

Trump says he is being treated differently from how Hillary Clinton was treated during the email saga in 2016. An FBI investigation found that Clinton had used a private email server to conduct official business when she was secretary of state but concluded that, while she was careless, it was unreasonable to bring a criminal case against her. In August, Senator Lindsey Graham told Fox News, “if there’s a prosecution of … Trump for mishandling classified information after the Clinton debacle … there’ll be riots in the streets.”

‍

Speaking of riots …

‍

As if all that wasn’t enough, Trump is implicated in 5 other investigations:

‍

• A federal investigation into the January 6 attack on the Capitol.
• A criminal investigation into election tampering in Georgia.
• Two separate cases (one criminal, one civil) in New York investigating whether he fudged his companies’ finances to get loans or dodge tax.
• A defamation lawsuit initiated by writer E. Jean Carroll.

‍

These matters are deepening the political rift between the so-called MAGA movement and the rest of the country. A poll suggests that 58% of Americans think the MAGA movement is a danger to American democracy. Seventy-five percent of Republicans claim Trump bears no blame for the violence on Jan 6th while 19% say his actions on that date threatened the country’s democracy.

‍

After the FBI raid, phrases like “lock and load” trended on social media sites like Gab and Telegram which are popular with Trump’s supporters there were even threats of violence against law enforcement agents. The Washington Post went so far as to say that “It’s easy and logical to conclude that the United States today stands as close to the edge of civil war as it has since 1861.”

‍

This raises the question of whether pursuing a criminal prosecution of Trump is a smart idea. The New York Times notes that doing so could “entrench support for him … play into the conspiracy theories he has sought to stoke … inflame the bitter partisan divide, even to the point of civil unrest [and] undermine confidence in the rule of law.” On the other hand, making an exception for Trump sends the message that the powerful are above the law thus undermining confidence in the rule of law in a different way.

Where does that leave us?

‍

You might think this has nothing to do with the legal department or your businesses in general but keeping quiet on political issues carries its own risks. Speaking out can be an opportunity to engage with stakeholders and develop your brand.

‍

Take Dick’s Sporting Goods, for example. In 2018 after the Parkland shooting, Dick’s destroyed $5m worth of guns from their shelves. In 2020, they committed to selling even fewer guns. The announcement caused their stock to jump up by 13%. Or consider Nike’s choice to feature football player and activist Colin Kaepernick as the face of an advertising campaign. Their share price dropped, fans burned sneakers, and public figures praised and criticized them but it’s a move that could well stand the test of time as American culture changes.

‍

‍

Litigation has a funny way of sneaking in fast. It also has a funny way of sneaking up on your legal budget — fast.

Don’t sweat it, we’ve got some tips for you. We were joined by Andowah Newton, VP of Legal Affairs at LVMH, Zac Henderson, Head of Legal and DPO at Levels, and Greg McLaughlin, VP and Head of Litigation at Kyndryl, who shared practical, cost-saving strategies so you can reign in that cash-hungry litigation beast before it gets out of control.  

‍

👫 Assemble the (affordable) dream team

‍

2:53 – 14:05

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Okay, you have a litigation matter. Not necessarily the news you’re looking for. You’re going to need a kick-ass team to deal with it. At the same time, you know the execs are going to want you to explain every penny. So where do you start? There are a few ways to find your dream team.

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• The usual suspects: If there are existing vendor relationships that were established before you even started in your role, you might want to stick with them, but if you don’t think they’re right for the matter, (in the words of Jay Z) on to the next one.
• Study buddies: Hit up your law school classmates. If they can’t do the job themselves, they might have some five-star recommendations.
• Window shopping: You can speak to a few different firms and send out an RFP to get an idea of what they can offer. You might want to present your CEO or CFO with a cheaper option (like an ALSP) and a pricier option and let them make the call.

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Get strategic. Trial counsel is your most important decision. They are the person who will run the show and set the narrative. Here quality should take precedence over price, as far as possible. With other vendors, it will be all about price. Most will be a balance between the two. Remember to look at the individual people who would be dealing with your matter. Even within a firm, different people can have very different approaches. If you opt to work with freelance legal pros, you’ll always know exactly which individuals you’re working with.

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🏈 Get in the game

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14:05 – 21:15 and 27:55 – 32:30

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Even a teeny tiny litigation matter can be super time-consuming. We all have our Boston Legal fantasies, but most of the time it’s not a great use of your time to handle litigation internally, even if it seems thrifty. Plus, bringing on outside counsel sends a message to the counterparty that you mean business. Nonetheless, you’re going to want to be as actively involved in the matter as your schedule will allow so you can:

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• Guide the strategy and make sure it’s on-brand
• Set expectations (both for outside counsel and your own exec team)
• Keep your hands on the purse strings
• Hold outside counsel accountable
• Pre-empt problems
• Justify and explain things to your executive team
• Make sure outside counsel gets access to the relevant facts and documents as efficiently as possible
• Learn more about litigation (if it’s not your specialty)

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All of this will ensure you’re getting the most bang for your buck.

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🗃️ Go full Marie Kondo on your billing

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21:18 – 27:00

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Being disorganized is a huge cost. We’re not suggesting you hold your contracts in your hands to check if they spark joy (unless that’s what gets you going in the morning) but we do recommend taking a leaf out of Kondo’s book when it comes to getting organized. You should be able to say to your outside counsel, “All documents relating to x live here.” And if you’re a big company with a slew of litigation matters, you should have the data to say, “Matters like this usually cost x and last y.” You also need to be able to warn your CFO, “Hey, this is how much we need to fork out at the end of the quarter.”

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Luckily there is tech that can help you out. Workflow software like Notion and billing systems like Bill.com can be game changers. If you’re not into tech, a good Excel spreadsheet will get you along just fine. Or you can get your outside counsel to run the numbers  – after all, you’re paying them enough.

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🌤️ Get a forecast (or two)

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32:31 – 37:30

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Budgeting for litigation is a bit like budgeting for a child –  they might be born sideways and no one knows how much orthodontics will be necessary. You should, however, ask your outside counsel to:

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1. Give some indication of what they think things will cost
2. Flag where things might veer off course
3. Lay out how they will try to economize if costs start stacking up

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That way you’ll have something to work off and something to hold them accountable to. You can even ask for two budgets: a best-case scenario budget and a worst-case scenario budget. That way you can give your exec team a heads-up that each strategic decision comes with a cost.

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🔎 Inspector Bill, on the case

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37:30 – 52:12

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As any pro wrestler will tell you, laying down ground rules saves everyone a lot of pain. Provide billing guidelines that let outside counsel know in advance if you won’t pay for business class travel or if you expect a phone call regarding costs above a certain threshold.

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Once the bill is in front of you, take a good hard look. You don’t want to see:

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• Names of associates that you’ve never heard of
• Partners working on things that are paralegal territory
• Paralegals working on things that are partner territory
• Billing for time spent emailing to set up a meeting
• Any obvious cheeky add-ons

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Good systems will save you time and money with this too. An electronic billing system will let you approve who can bill hours and, if you’re bold, edit items e.g. swap a first-class flight for the cost of an economy ticket.

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The bill is never set in stone but you have to balance cost-saving with managing your relationship. Taking a red pen and crossing stuff out could make you unpopular. Sometimes a hard ball approach is necessary. Other times, a phone call and a few polite queries will do the trick. It could be strategic to say nothing at all.

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Of course, you can always cut your bills and get more control over your spending by using ALSPs instead of a law firm.

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Enjoy these recaps? Share them with your network!

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👋 The team at Lawtrades

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It used to be easy to be a “good person.” Say please and thank you. Don’t break the law. Maybe help the occasional old lady across the street. Now we have to worry about how far our avocados have traveled to get to our toast, whether the farmers who grew the beans for our coffee were fairly compensated, and whether the tip we leave the server is dependent on any underlying prejudices. And that’s just breakfast. The standards are getting higher for businesses too.

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Corporate accountability programs are not a new invention but there is a new kid on the block: Environmental Social Governance. ESG can be described as a way to measure whether a business is a “good person.” Blame globalization. Blame the internet. Blame millennials. Whatever the reason, it’s becoming more and more important for businesses to show that they are at least trying to up their ESG credentials.

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What does the legal department have to do with it? You’re about to find out.

First, the basics

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The idea behind ESG is that metrics for good (ethical, eco-friendly, fair) business practices are used alongside financial metrics to measure the value of a business. One lawyer talks about something they call the “grandma and media test.” When the business asks the legal department for advice, you should ask not only whether an action is within the law but whether you’d be happy to tell your grandma about it or have it visible on social media for years to come. That’s useful but kinda vague. Let’s get a bit more specific.

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🌲 E is for environmental. If it keeps David Attenborough up at night or sets Greta Thunberg’s teeth on edge, it falls into this category. In practical terms, improving your E creds could mean reducing food waste in your office cafeteria, cutting down on business travel, or changing the way your products are packaged.

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🤝 S is for social. This is where we (hopefully) show that we’ve improved a bit since the Dark Ages. Tackling the S could involve choosing suppliers that provide good working conditions for their workers, protecting your client's data, reporting on the gender pay gap, or making sure your delivery drivers are obeying the speed limit.

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💼 G is for governance. Here we’re talking about what the suits get up to behind closed doors. Nepotistic hires, suitcases of money exchanged in hotel rooms, backstage passes to Michael Bublé gifted to regulators right before some allegations disappear. Well, not all governance matters are quite so juicy. G covers everything from board structure to ethics policies and anti-bribery and corruption measures.

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Why is there a spotlight on these three areas? Well, there are a bunch of reasons but the scary reality of climate change and the flourishing of global activism following the murder of George Floyd definitely played a part.

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The Boohoo boo-boo

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One reason why legal should get involved with ESG is that it involves a lot of risk management (and we all know lawyers and risk go together like PB & J). Companies with bad ESG risk serious reputational damage that can translate to revenue loss. Those risks come from four main sources.

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Regulators

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Take Boohoo for example. In 2020, the UK-based fashion retailer was found to be associated with factories that used slave labor (“boo-boo” is a major understatement here). Overnight, their share price crashed by 20%. Now they're facing a ban on imports to the US, which may affect over a fifth of their revenue.

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Laws that deal with hiring practices, bribery, and other ESG areas have been around for ages but regulation in this area is climbing across the globe.

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Examples include:

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• California’s Climate Corporate Accountability Act
• The SEC’s proposed climate disclosure rules
• The EU Taxonomy (also a climate disclosure rule)
• Germany’s Supply Chain Due Diligence Act which requires companies to root out human rights abuses in their supply chain.

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Potential Investors

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VCs have hopped on the ESG train too. Last year Uber Eats competitor Deliveroo had “one of the most disastrous IPOs in memory” (ouch!) after investors noted that its employees are “treated as disposable assets.” Some private equity companies, such as BlackRock, insist that their portfolio companies have ESG creds. The UN Principles for Responsible Investment has 7000 corporate signatories in 135 countries. Number one of its six core principles states: “We will incorporate ESG issues into investment analysis and decision-making processes.” In other words, if you’re failing the grandma test, good luck raising capital.

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Existing Shareholders

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The number of shareholder activist campaigns with ESG objectives doubled between 2016 and 2021. Take the shenanigans at ExxonMobil for example. In 2020, a hedge fund called Engine No 1 bought 0.02% of the company and launched a campaign to change the company’s approach to the climate. After winning over larger shareholders, they ended up with several seats on the board and a mandate to set sail for a greener destination. Similarly, shareholders booted the CEO of Rio Tinto after the mining company damaged a site of Australian aboriginal cultural significance. Shareholders care about ESG and they will rock the boat if the company is off course.

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Client, consumers, and employees

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An ESG PR disaster is the business equivalent of that nightmare where you realize you’re at work with no clothes on. When the public learns of dodgy dealings or planet plundering, it can lead to lost clients, consumer boycotts, social media scandals, employee walkouts, and lawsuits. On the other hand, good ESG creds can help you attract and retain employees, make employees feel more fulfilled at work, and create a loyal consumer base.

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Think about:

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• Netflix’s commitment to share stories about Black and LGBTQ+ characters
• Ben & Jerry’s social justice-themed ice cream flavors (Change the Whirled, anyone?)
• Mercedes Benz’s decision to stop launching gas and diesel vehicle models by 2025
• Airbnb’s offer of free temporary housing for up to 100k Ukrainian refugees

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Compare that to:

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• United Airlines’ violent removal of a passenger from a flight
• VW cheating on emissions tests
• Purdue Pharma’s role in the opioid crisis
• McKinsey’s corrupt contract in South Africa
• And Facebook’s use of data (76% of Americans think Facebook is making society worse.)

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Suffice to say, ESG is about so much more than warm, fuzzy feelings. It’s about who a company is. And the consequences are concrete. But don’t take our word for it. Larry Fink, CEO of BlackRock, recently wrote, “We focus on sustainability not because we’re environmentalists but because we are capitalists and fiduciaries to our clients.” And according to the experts at McKinsey, better ESG scores correlate with a 10% lower cost of capital because of lower regulatory, environmental, and litigation risks. They should’ve taken their own advice.

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How to get started

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At Lawtrades, we’re all in favor of taking ambitious steps to make the world a better place. But how the heck do you get started? For those of you at companies that are yet to jump on the ESG bandwagon – or are still in the early stages of that journey – here’s our five-step guide to building an ESG strategy.

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1. Get together.

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Find the people who are interested in getting involved and start a conversation. It might be someone on the board, one of the founders, or a project manager in another department. These things have a way of stagnating if no one takes ownership so seeking out some enthusiasm is a great first step. If you can get someone in the leadership team excited, all the better.

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2. Decide on a vision.

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Are you in this just to mitigate risk and tick the boxes? Or do you want to make a real difference? Do you want to future-proof the company or be reactive? Is there a specific area where your company is having a negative impact that you’d like to change? How ambitious do you want to be?

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In an ideal world, this should be a long-term vision that the company adopts across all departments and at the highest level. If you don’t have that kind of influence, start small and focus on what’s realistic – even if it’s just those annoying sensor lights you have to wave at if you’re still for too long.

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3. Evaluate.

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This is where things get really tricky. Before you try to cut your emissions or push for diversity, you need to evaluate how you’re doing now in a quantifiable way. For the environmental category, that means measuring scope 1, 2, and 3 greenhouse gas emissions.

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Scope 1 and 2 emissions are those that come directly and indirectly from the company – like emissions from its factories or from turning on the lights at the office.

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Scope 3 emissions are those created by people up and down the supplier chain. It’s how people dispose of the batteries in your products and how your suppliers’ suppliers commute to work. These are super tough to measure and really important. It’s estimated that the average company’s total emissions are 5.5x higher than just their scope 1 and 2.

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If a professional ESG auditing service is out of your company’s/department’s budget (sigh), start by putting in place procedures for gathering more easily accessible data such as the average salary for employees of different races. You could also gather information by talking to members of your team about how they experience working for the company or set up a Google Form where staff can submit details about how they commute.

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4. Set targets.

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Set measurable short and long-term targets. Don’t be scared to be ambitious. BP hasplans to get to net zero by 2050 – and they’re an actual oil company. If you don’t have the buy-in for something on that scale, start with low-hanging fruit. Projects like cutting down on printing or electricity use have an associated cost-saving which makes them easier to motivate for. Get your team involved in brainstorming so you have buy-in from the get-go.

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Figure out your strategy for reaching those targets and who is going to do what. This is where someone with project management skills (ahem, legal ops) will come in handy. Make sure you have a way to monitor how things are going.

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5. Be Honest.

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Get with the times! Let your employees, shareholders, consumers, and even the public know how things are going. Being transparent about your ESG failings shows a willingness to change. Plus, reporting on carbon emissions is fast becoming de rigueur. Check out how Slack and Salesforce report on their diversity progress here and here, or take a look at the global Reporting Initiative.

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The role of legal

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ESG and legal happen to make quite the fitting match. Not only is ESG a risk-mitigation tool, but it’s also an opportunity for the legal department to embed itself into the core operations of the business, collaborate with other departments, play a role in establishing the identity of the business, and add even more value (go legal!).

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Here are just some of the ways that legal can take ownership of ESG:

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• Risk mapping: Do a full assessment of the ways that your company is vulnerable to ESG-related risks so you can nip them in the bud.

• Due diligence: Incorporate ESG into your due diligence when you’re checking out possible new vendors and partners.
• Contracts: Write contracts that hold your supply chain accountable to your ESG goals. The Chancery Lane Project has loads of templates of climate-aligned clauses for your use.
• Upskill: Educate yourself about ESG. Christine Uri, who is the GC and Chief Sustainability Officer at Engie Impact, writes regular helpful content on LinkedIn with the hashtag #sustainablecounsel. You could take time to read a book about anti-racism, or gender bias.
• Join the dots: Legal deals with every department so you’re well placed to act as a liaison. Use that power to connect every part of the business to the overall ESG goals.
• Liaise with industry: ESG is still a kinda vague space without standardized expectations of how far companies should go. Engage with other companies in your industry and with others in the legal field to stay on top of ESG best-practice.B Corp certification is one attempt at standardization that’s worth looking into. You can also read sustainability and diversity reports from other companies to see what they’re up to.

• Liaise with the board: In order for an ESG strategy to really succeed, it needs to be on meeting agendas. There need to be people (or even a dedicated committee) on the leadership team who are invested in the goals. Some companies even link executive compensation to ESG metrics.

• Write living breathing policies: Do what you can to make sure ESG policies written for the company aren’t a load of legalese that rots away in a drawer. Create a readable summary or even a video. Distribute them to staff. And put them somewhere easily accessible.
• Practice what you preach: You can apply ESG principles to the everyday running of the legal department. That could mean remembering to wish a colleague of a different faith happy holidays or choosing meat-free catering for a department event.

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It all comes out in the (green)wash

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Going green can help you bring in the “green.” But doesn’t that set up some perverse motives? Mark McAteer writes in The In House Lawyer, “Excuse me for sounding a little jaded. It’s just that we’ve been here before with the three little letters: CSR [corporate social responsibility]. At first, that was all about good intentions … but it soon descended into a cynical PR exercise.” There’s certainly good reason to be skeptical. One study found that fund managers who signed the United National Principles for Responsible Investment attracted an influx of investment as a result but did not follow through on their commitment to ESG.

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• There’s also a risk that companies are tempted to overstate their ESG credentials. Pretending to be greener than you really are is called greenwashing and it’s a really bad idea. The Securities and Exchange Commission has a newly formed ESG Task Force which is prioritizing investigations into false ESG claims. The Federal Trade Commission also has its nose to the ground. In April, it hit Walmart with a $3m penalty over false claims that some textile products were made from bamboo. And in July, German police raided the offices of Deutsche Bank over accusations that it exaggerated the ESG creds of its investment portfolio.
• It’s also worth mentioning that not everyone thinks ESG is a good strategy for making the world a better place, even if companies don’t cheat. Tariq Fancy, an ex-BlackRock investor turned outspoken anti-ESG commentator, calls ESG “a dangerous placebo that harms the public interest.” His arguments are lengthy but the core idea is something like “Nice idea. Doesn’t work.”

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While we’re being negative, sticking to good intentions is only likely to get harder. Part of the downfall of CSR was the global financial crisis. It’s tough to think about the larger community when you’re struggling to survive. And let’s be honest. Surging oil prices and high-interest rates aren’t helping the case for current ESG funds.

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Being a good person is not always easy (sometimes you’ve gotta put your chair all the way back on a flight even if the guy behind you is an NBA shoo-in). Neither is a large-scale rejigging of your supply chain or a sustainability-focused product overhaul. But sometimes the toughest things are the best things for the business. Legal gets that. Legal departments can think long term, anticipate risk, and take note of all the stakeholders – even when stocks are tumbling. They’re well placed to take on the role of moral compass.

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The ESG trend may or may not last. But doing the right thing never gets old.

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Legal Operations. It’s as mysterious and intimidating as US Special Ops. Well, not quite. But it is the most in-demand position in legal! So what is it exactly, and how can paralegals transfer into this world? Lawtrades Head of Community Matt Margolisspoke to Carl Morrison, Director of Legal Ops at MGM Resorts International, Deisha Vazquez, Director of Legal Ops at Benevis, and Tom Stephenson, Director of Legal Ops at Credit Karma. They told us how they made the jump and went on to whip their legal departments into shape.

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In case you missed it, here are our top 5 takeaways.

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💼 The COO of the legal department

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07:00 – 19:45

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Much like Lady Gaga, the legal ops role has been evolving and growing in popularity since the mid-2000s. It’s fast becoming a must-have as legal departments realize they’re a total game changer. So what does legal ops do exactly? They act as a revenue protector, making sure the C-suite are getting maximum bang for their buck out of legal. They do so by looking at the business operations of the in-house legal department and figuring out how they can be improved.

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Confusing intake systems. Bottlenecks in the contracting process. Attorneys’ time is wasted on non-legal tasks. Legal ops takes all that off the lawyers’ plates. Legal desperately needs someone with those skills because let’s be honest, attorneys don’t necessarily know the first thing about business or project management. Legal ops also keeps an eye on the greater mission, so lawyers can focus on putting out fires. In other words, if GCs are Neil Armstrong, legal ops is Houston.

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📅 A day in the life

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39:25 – 49:19

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So that’s the teaser trailer. Now here’s the behind-the-scenes footage. The day-to-day work of a legal ops pro might include:

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• Chatting to colleagues to gauge the appetite for change.
• Implementing legal tech, systems for gathering data, and workflow solutions.
• Making data-driven decisions.
• Using performance data to show how legal is killing it.
• Pushing for a bigger tech or talent budget.
• Liaising with ops teams in other departments.
• Growing and shaping the team.
• Providing business advice to the GC.

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Basically, they’re the glue that holds the legal department together. They are nimble and their role can be shaped to meet a legal department’s needs, no matter the size or budget of the department, or the industry in which it operates.

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🦘 Making the jump

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19:36 – 32:23

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If you’re thinking of making the jump from paralegal to legal ops, there’s good news. You’re probably better equipped than you think! You can stick a different label on it, but lots of paralegal work is operational in nature. It could be billing, budget management, vendor procurement (e.g. finding the best court reporter), or finding ways to speed up the process of dealing with intake forms. Sure, there will be other areas where you have no experience at all but there’s always room to learn. So many paralegals have taken the same journey. Just don’t wait for an opportunity to fall into your lap.

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Here are some of the ways you can move towards a legal ops role:

• Educate yourself. Take a look at the job description of your dream role then head to the University of YouTube to learn as much as you can (but we didn’t tell you that 🤫).
• Skill up. Take on more operational tasks within your current role.
• Get networking. Reach out to legal ops pros on LinkedIn. Or check out CLOC(The Corporate Legal Operations Consortium).
• Advocate for yourself. Let the higher-ups know your goals. Ask for opportunities to upskill. Let them know how you can better serve the department in an operational role.
• Impress. Being good at what you do now is a great advert for what you’ll do in a new role.

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If a lack of confidence is holding you back (don’t sweat, we’ve all been there), look for inspiration. Deisha, for example, started out her career with a high school diploma and a paralegal certificate. Since then she’s:

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• Built an entire legal department from scratch.
• Run a legal department while the GC was on medical leave.
• Brought in $11M by implementing a contract management system.

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If that doesn’t inspire, we don’t know what will.

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🛒 Can I get you a cart for that ego, sir?

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32:24 – 39:35 and 49:35 – 56:10

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Attorneys have hurled curses, insults, and even physical projectiles at our panelists. Yikes! But, unfortunately, it happens. Being a superstar attorney can lead to an oversized ego (and, well, sleep deprivation). First off, where possible, find a work environment where you’re surrounded by people who will help you succeed and grow. We spend way too much time at work to be dealing with toxic people.

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If you do find yourself working with Johnny Bravo, confidence is your friend. Project the image of a highly valuable professional (that’s what you are after all) and others will see you that way too. Sometimes you will have to just put your head down, get the work done, and let the bad behavior roll like water off a duck’s back. At other times, you need to draw boundaries. If necessary, take an attorney aside and let them know, in a polite and professional manner, that their behavior made you uncomfortable. In short, confidence + boundaries + EQ = win.

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🤖 A future-proof career

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56:11 – 59:43

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More and more companies and even law firms are saying of legal ops “Where have you been all my life?” Efficient operations and revenue protection will sound even sweeter if we find ourselves in (whisper it) a recession. Our panelists predict that the profession will be elevated. Legal ops will be brought more into the C-suite and the board of directors as well as private practice. The only way is up.

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👋 The team at Lawtrades

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Trigger warning! Contains content about … the bar exam.

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Law grads across the country are in a state of anxious anticipation as they wait to find out if they’ve passed last month’s bar exam. Failing could mean an extended period of unemployment, additional exam fees, mounting student debt, and rescinded or downgraded job offers - not to mention even more grueling studying. “But, hey,” say some lawyers, “we’ve all been there. Some things are tough for a reason.” There’s a growing collection of voices who disagree.

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So for today’s multiple choice section, is the bar exam a) a time-honored rite of passage that protects the public and maintains a high standard for the profession? b) a sadistic hazing ritual that reinforces inequality and has very little to do with being a good lawyer? or c) “What bar exam? I’ve repressed that memory.” Don’t worry. We’ve got the Cliff Notes on this one.

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Ye Olde Bar

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According to this potted history of the bar, up until the mid-1800s, would-be lawyers trained by doing apprenticeships and qualified by taking an oral exam, which was usually given by a judge. It seems like the oral exam was pretty lowkey. One candidate was asked what he knew on a particular topic and replied “nothing.” He passed. Abraham Lincoln is even said to have examined a candidate from the comfort of his bathtub (“You pass the bar … of soap, please.”).

Not everyone had an easy ride. Clara Foltz (having written the amendment to the law that allowed it) became the first woman admitted to the California bar (and an absolute legend) after a three-hour grilling. It was not the first time the bar was used to exclude all but the elite. And it wasn’t the last (more on that later).

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In 1855, Massachusetts became the first state to introduce a written element to accommodate those who couldn’t sit the oral exam. And then in the 1870s, Suffolk County, Massachusetts, and New York introduced a compulsory written exam. In 1931, the National Conference of Bar Examiners was founded with the goal of creating a uniform standard of eligibility for admission to the practice of law. A lot has changed since then.

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The Bar Is Raised

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As many of you know all too well, the bar now takes two days to sit, requires 400-600 hours of studying, and is – according to the Twitterverse – an all-round nightmare from hell. Around 20% of candidates do not pass the exam the first time around, meaning they have to repeat the whole nasty business. Six months later. Which is a super long time to be stuck in career limbo.

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As if that wasn’t enough, because this is ‘Merica, the whole process has been successfully monetized. The bar exam is thought to be a $30B industry. Wannabe lawyers face a pretty serious shopping list which can include:

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• Application/registration fees ($150 – $1,300)
• Bar prep courses ($1,000 – $4,000)
• Private tutoring (~$150/hr)
• Fees for additional tests such as the MPRE ($125)
• Miscellaneous admin fees such as fingerprinting fee ($135)

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Yep, that’s a potential total sum of more than $5500 per test! Of course, there is also the cost of covering your basic living expenses while studying takes control of your life. And let’s not forget that most candidates have a massive load of debt hanging over their heads.

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The Bar Goes Viral (Literally)

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In 2020 and 2021, many states moved the bar exam online to limit the spread of Covid-19. It was, by all accounts, a nightmare. Every cohort tested online reported technical problems, from the software crashing and the screen going blank, to facial recognition, and an anti-cheating feature that didn’t work for Black faces.

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In July 2020, Examplify – the software used for remote bar exams – crashed during the Michigan bar. California bar officials report that 31% of people who took the exam in July 2021 experienced technical problems. For the October 2020 New York bar, that figure was 41%. These issues were still not resolved by this July, leading Bloomberg to publish the headline “Oh You’ve Got Tech Woes? Try Taking the Bar.”

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In addition to those disrupted, many more were understandably affected by anxiety surrounding the glitches. Some were incorrectly flagged as cheaters. Those that were in-person had their own problems too. Exams were delayed and canceled. That’s on top of the fact that students were at risk of catching the virus.

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Some states took a different approach. Washington, Oregon, Utah, Louisiana, and the District of Columbia put in place “emergency diploma privilege” rules which allowed 1k+ candidates to become licensed to practice law without taking the bar. Emergency diploma privilege was also instituted during the California earthquake in 1906, World War II, and the Korean War. Prior to Covid, the only state that offered diploma privilege as an alternative to the bar was Wisconsin (and to a lesser extent New Hampshire). Wisconsin’s diploma privilege system only applies to graduates of ABA (American Bar Association) accredited law schools within the state. It is something of a relic – in that Wisconsin simply kept theirs while other states adopted the bar – but it’s a product of the state’s confidence in their schools. In fact, experts argue that the system encourages the judiciary and legislature to work more closely with schools to ensure they are providing an appropriate, top-notch education.

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Earning their license in this unorthodox way doesn’t seem to have hindered the progress of the 1k+ lawyers mentioned above. Five were hired by century-old law firm Davis Wright Tremaine, which says the absence of a bar exam result was “not a concern” and that the associates had “established their capabilities.” Washington State, Oregon, North Carolina, and Hawaii even lowered the cut score (pass mark) for the state bar in 2020.

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The Covid-era shake-up has sparked some serious beef about the bar and left some in the legal community wondering if it’s really necessary at all. Calls to #abolishthebarwent viral on Twitter. Activist groups started popping up, including United for Diploma Privilege, “a grassroots coalition of recent law graduates, lawyers, law professors, and legislators pushing for attorney licensure reform that would do away with the bar exam.” Experts published by The Washington Post, the Wall Street Journal, and Above The Law chirped in on the movement too.

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Bar-riers to Entry

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In 1912, (ABA) accidentally admitted three Black lawyers as members. Thereafter, they made sure to check applicants’ race and gender before admitting them. That overtly discriminatory practice stayed in place until 1943. In the ‘60s and ‘70s, the NAACP and ACLU argued that bar exams were being used to prevent Black candidates from becoming lawyers. Concerns that the bar reinforces inequality continue to this day.

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In 2020, 66% of Black candidates passed the bar on their first try, compared to 88% of white candidates. Possible explanations include bias in the test, unequal standards of pre-law-school education, and financial challenges such as higher student debt and the higher likelihood that Black students have to work while studying.

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The unequal pass rate for minorities translates to underrepresentation in the profession. Black Americans make up 13% of the population but just 4.7% of lawyers are Black.

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Great Bar Score = Great Lawyer?

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Another major complaint about the bar is that it doesn’t test whether candidates are fit to be lawyers. The test is all about memorizing loads of things whereas real-life lawyering is all about critical thinking and a great deal of looking stuff up. If anything, going off memory is more likely to result in some kind of malpractice. Plus, the law changes. The bar also fails to test other skills like negotiation, composing letters, and interviewing clients. And it does little to prepare lawyers for an in-house role where a basic understanding of business and finance is essential.

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Moreover, there’s little empirical evidence that the bar is a useful test for weeding out people who aren’t cut out to be attorneys. Malpractice is not more common in Wisconsin. Complaints and disciplinary actions are not more common in states with lower cut scores.

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The complaints don’t end at high costs, racial discrimination, and, well – pointlessness. Economists worry that a challenging bar exam could be abused to, “create an artificial shortage [of lawyers], reduce competition, drive up prices, and drive down the quality of services.” Meanwhile, 80% of civil legal needs are going unmet.

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Law firms are struggling with staff shortages. And an international survey found that 20% of lawyers under the age of 40 are thinking of leaving the profession. Plus in-house legal teams have a growing need for talent as their role within businesses expands. Companies are leaning more on legal for business advice and to help them deal with increasingly burdensome responsibilities like ESG compliance, privacy, and new territory like the metaverse.  

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Propping Up the Bar

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Okay, so the bar isn’t perfect but it’s gotta have some pros right? Sure. The truth is that plenty of university degrees don’t teach the practical skills required for a career in the field. It’s pretty hard to know how good a lawyer someone will be until they actually start practicing. The bar acts as an imperfect but helpful proxy to make sure that only smart, hardworking people end up with a license.

Secondly, not all law schools are created equal. They’re certainly not equally regarded by employers. The bar creates a level of standardization that, in theory, can reduce discrimination against strong candidates from less prestigious colleges.

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The National Conference of Bar Examiners (NCBE) says it is “confident in the validity, reliability, and fairness of the exam because it has been carefully developed and vetted to meet professional testing standards.”

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A Case of Snowflake-itis?

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Isn’t this just another case of snowflake younger millennials complaining that life is too hard? If they don’t have what it takes to write a challenging exam, they won’t be able to cope with the challenges of a legal career, right? Maybe. But if there is a more affordable and effective way to evaluate would-be lawyers, it seems worth exploring. Putting students through a financial and emotional ordeal just because “we had to do it when we were their age” seems cruel. And if the profession really requires a strong tolerance for suffering, maybe it’s time to change the profession.

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The Alternatives

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What if it is time to say adios to the bar? We still need some way of deciding who is able to practice the law. Here are some possible reforms.

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Wait for the new test

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• The NCBE is designing a new test they’re calling the Next Gen Bar Exam which is set to be on desks in 2026. The new test is supposed to focus less on memorizing stuff and more on legal skills such as legal research, legal writing, and client relationships, although it’s not really clear how the heck they will go about doing that.
• An exam redesign volunteer suggested that test-takers could be given a transcript of a client counseling session to crit. It’s an interesting idea but it will be several iterations of the iPhone before we get a chance to judge the execution.

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Lower cut score

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• In 2020, California’s Supreme Court lowered the passing score for the California Bar Exam to 1390 from 1440. The next round of exams saw a 10%+ increase in the pass rate, especially for underrepresented test-takers. In October 2020, compared to July 2019, 28.5% more Hispanics, 25.8% more Asians, 23.9% more Blacks, and 20.8% more Whites passed. Rhode Island has since lowered its own state cut score and at least 3 other states (Texas, Arizona, and Michigan) are considering following suit.

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Expand the UBE

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• Some reformers are keen for states to move over to the Universal Bar Exam, rather than each offering their own test. The UBE is accepted in nearly 40 jurisdictions meaning that, regardless of where lawyers sit the test, they can practice in many parts of the US (at least for a limited period of time).
• State-specific bar exams are more restrictive. The UBE is also easier to pass than a state exam which means it’s less of a burden on test-takers, especially those who can’t afford to be unemployed while they prepare.

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Diploma privilege (DP)

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• The rest of the US could follow in Wisconsin’s footsteps and license law grads without requiring them to pass a bar exam. After all, the President of the NCBE got her license through diploma privilege (such juicy irony).
• DP could even be offered as a voluntary alternative to the bar. States could institute additional requirements for licensure, such as a set number of supervised practice hours, CLE courses, and character fitness tests. States could even create a “learner’s permit,” like the kind given to new drivers, which would allow grads to fulfill some legal duties, but not others until they can parallel park without scratching up their moms’ cars (metaphorically speaking).
• These are not just pipe dreams. In Minnesota for example, the State Board of Law Examiners has announced that it will “take two years to study the bar exam … and the impact of being a state that admits lawyers based on their scores.” They will be investigating alternatives to the bar, including diploma privilege.

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You may be smiling smugly as you read this, enjoying the fact that you paid your dues and passed the bar a long time ago. But the #abolishthebar movement raises questions that are relevant for the entire industry.
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1. Let’s start with inequality. Legal departments can’t do much to change who becomes licensed to practice but there are lots of things that in-house teams can do to tackle this problem. You can make sure that interview panels are diverse, track diversity metrics, allow flexible and remote working, and get educated about unconscious bias.

2. Then there is the matter of practical skills (which the bar is clearly not great at testing). Freelance attorneys would be wise to bulk up their resumes with CLE courses (like Hotshot which we provide to all our wonderful Lawtraders) and even non-legal-specific skills, such as management and data analysis. Companies can offer paid work experience to law students and grads who are waiting to take (or retake) the bar. And in-house teams would be wise to skill up their legal pros so that they can take on more generalist roles, especially if you’re part of an early-stage start-up. Generalists will be extra valuable if we do end up in a recession.

3. Finally, not every legal task requires an attorney. Don’t forget about all the fabulously talented legal pros who never took the bar. After all, non-JDs can save you time and money.

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Beyonce was right when she answered her own question: “Who run the world? Girls.” Or at least they do when no one is standing in their way. But payslips don’t always reflect the contribution women make. Lawtrades’ Lauren O’Neill talked to #bossladies and women-in-legal champions Karla Pinckes, Senior Director, Corporate Legal & Securities at Viavi Solutions, and Maureen Frangopoulos, Senior Legal Director at Uber, about equal pay and how to get it, as well as tips for leaders who want to promote a fairer work environment.

These ladies have serious cred on this topic. Maureen manages over 65 legal professionals and views herself as their chief advocate. Karla is involved in two female-focused organizations - Sunlaw, a community for women in-house counsel, and Girls Inc, a non-profit that works with underrepresented teenage girls to help them be brave, bold, and healthy.

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Here are our top takeaways from the event.

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💰 It’s not all about the money, money, money.

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03:50 – 11:30

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As we explored in this deep dive, female legal professionals are (still!) getting short-changed. The average weekly income for female lawyers is $1,878 while male lawyers earn $2,202. And women acting as general counsel make ~$100k less than men (sigh). But that’s not the only unfairness faced by the so-called fairer sex. Legal, like many industries, also has plenty of old-school attitudes that deserve a wince, a headshake, and a major update.

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Challenges faced by female legal professionals include:

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• Exceptional women are sometimes overlooked in favor of mediocre male colleagues.
• Behavior that’s seen as a display of leadership qualities by Jim, is described as bossy when Jill does the same thing.
• A global survey of legal workers found that 1 in 3 women had been sexually harassed in the workplace.
• Mothers are penalized for parental commitments in a way that fathers are not.

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Maureen appeared in court in a pantsuit only to be told by the judiciary to “Come back when you’re in a skirt.” And Karla was asked about her “child plans” in a job interview (which is illegal btw). Seriously, legal? It’s 2022! 🙄

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🌪️ Hold on to your hats, fellas. Change is on the horizon.

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27:11 – 28:40 and 33:00 – 37:20

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Diversity and equality are no longer “nice to have.” Failing to address the wage gap can:

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• Put off investors, especially as ESG reporting becomes standard practice.
• Send female employees packing, especially as more companies are making public commitments to do better (e.g. including salaries on job posts, publicizing wage gap figures, or ensuring there are women on interview panels).
• Invite lawsuits (and expensive ones too).
• Alienate younger talent.

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Gen Z cares more about their employers’ values than previous generations and talks more openly about pay so the clock is ticking for companies to get with the program. Besides, research shows (picture a white coat) that a diverse workforce can only make companies more successful.

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🦸🏾‍♀️ Be the #bosslady (or boss gent) you wish you’d had.

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37:20 – 52:00

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If you’re in a leadership role, advocate for the women in your team. Put measures in place to ensure you are treating everyone the same e.g. everyone gets the same amount of one-on-one time to discuss their career. You can also use LinkedIn or other social media to promote content that shows your commitment to equality and fairness.

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⬆️ Lead upwards.

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11:30 – 12:20 and 30:40 - 32:00

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If your manager/GC/partner/client isn’t making equality a priority there are strategies you can use to advocate for yourself.

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1. Make sure your manager sets out objective criteria and goals by which you will be evaluated. That way it’s less likely that unconscious (or conscious) bias will creep into promotion/raise negotiations.
2. Start conversations with the higher-ups about equality and diversity.
3. Get good at negotiation. Some of us feel nervous about being pushy or think it’s impolite to talk about money. Do your research or seek mentorship on this topic and don’t be afraid to advocate for yourself. You know the guys are doing it!

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🤔 Be picky

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18:00 – 23:55

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If all your best efforts to push for fair pay seem to be an uphill battle, it may be that you’re at the wrong place. Hey, not all employers deserve fabulous female talent. Startups with a less developed leadership team, for example, might not have good structures in place to mitigate unconscious bias such as measurable objectives with defined assessment structures. Check Glassdoor for reviews of the company. Look at who’s on the board. And ask questions about the company’s compensation philosophy, diversity policies, and potential career progression in the interview. But stay cautious. It’s easier to talk the talk than it is to walk the walk.

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Enjoy these recaps? Share them with your network!

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👋 The team at Lawtrades

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Public opinion of The Supreme Court of the United States is shifting. Only 25% of Americans now have confidence in the institution. Commentators are declaring that the court is in crisis, questioning its legitimacy, and even calling for an end to SCOTUS in its current form. One of SCOTUS’ own judges, Justice Sotomayor, described the court as “restless and newly constituted” — implying that over 200 years of tradition and precedent are slipping out of focus. The debate came to a blistering head on June 24 when the court overturned Roe v. Wade, widening a rift in the nation. The nation stands divided but one thing all sides can agree on is that SCOTUS is generating more legal drama than a Judge Judy marathon. We take a close look at the cases defining the new era of SCOTUS and how the court’s decisions might impact everything from who you can marry to how you vote. Here’s what you need to know.

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How did we get here?

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The current court is swinging further right than it has in at least 75 years. Out of 9 justices, 6 are currently conservative. Here’s how it played out.

• Gorsuch for Scalia: When the hard-core conservative Justice Scalia passed away, President Obama still had just under a year left of his term. Republican senators kiboshed his plans to fill the vacancy on the basis that it was an election year and voters should first have a say. Trump went on to fill the vacancy when he appointed Justice Gorsuch in 2017.

• Kavanaugh for Kennedy: Trump’s second SCOTUS appointment was Justice Kavanaugh who replaced Justice Kennedy — a conservative who nonetheless sidedwith liberal judges on a number of issues, including same-sex marriage and abortion. The appointment followed a brutal confirmation hearing in which Kavanaugh was accused of sexual assault at a high school party.

• Barrett for Ginsburg: In 2020 (the year of the presidential election), staunch conservative Justice Amy Coney Barrett replaced Justice Ruth Bader Ginsburg (aka The Notorious RBG), a liberal icon and women’s rights activist. It was this third Trump appointment that seemed to signpost the start of a new era for the court. Ginsburg’s dying wish was that she was not replaced until a new president was sworn in but Republican Senators failed to apply the “no new appointees in an election year” rule that had stymied Obama.

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The End of Roe v. Wade

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The background

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In 1973, a pregnant woman with the alias Jane Roe filed a lawsuit against the state of Texas with the aim of getting abortion legalized. At the time, abortions were only legal if performed to save the mother’s life. The Supreme Court ruled in favor of Roe, basing their judgment on the “right to privacy” which is not explicitly stated in the US Constitution but has been recognized as a right since, well, 1891. The ruling did not provide an absolute right to abortion so states were free to put some regulations in place. The court also noted that there was no precedent for recognizing unborn people as legal persons. Interestingly, the number of abortions performed in the US in the years before and after the ruling was pretty much the same. Women were simply able to access the service legally.

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It’s almost hard to believe, but in 1973, abortion was not a partisan issue. In fact, fourof the judges that presided over Roe v. Wade were Nixon appointees. But abortion has increasingly become a dividing line between Republicans and Democrats. Over the years, many red states have introduced laws that come close to banning abortion by making it expensive and super complicated to access. For example, before this June’s ruling, there were six US states that had only one abortion clinic and five states that banned abortion before 6 weeks (which, by the way, is before many women are even aware they’re pregnant).  

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Dobbs v. Jackson Women’s Health

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At face value, the case concerned the constitutionality of a Mississippi law prohibiting most abortions after 15 weeks of pregnancy but after failing in the lower courts, Mississippi took the case to The Supreme Court and asked them to overturn Roe.

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Despite being given a preview of the bombshell ruling in the form of a leaked draft, the world was shocked when SCOTUS rolled back the constitutional right to abortion and overturned Roe in a 5-4 split decision. The ruling leaves states to decide whether or not to allow abortion and offers up no exceptions — even for rape, incest, or cases where going ahead with the pregnancy endangers the mother’s life.

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The court justified its decision by saying that the word ‘abortion’ does not appear in the Consitution. Justice Alito argued that when the 14th Amendment (which protects liberty) was ratified, the people who did so did not intend for the amendment to cover abortion.

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The dissent on the other hand says sorrowfully, “After today, young women will come of age with fewer rights than their mothers and grandmothers had.” The dissenting justices argued that giving women the choice of whether or not to have a child is essential for respecting their bodily autonomy.

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The impact

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Following the announcement, abortion clinics across the country shut down overnight. Thirteen states had in place “trigger laws” which came into effect automatically after the ruling. Abortion is now banned or close to being banned in 60% of US states.

Thousands protested and many celebrated when the news was delivered. President Biden decried the ruling calling it an exercise in “raw political power” by “an out-of-control Supreme Court, working in conjunction with extremist elements of the Republican party.” In one extreme example of the passion surrounding this issue, an armed man was arrested near Justice Kavanaugh’s home. He had planned to kill the judge and then himself over the overturning of Roe.

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The legal impact

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Dobbs v. Jackson Women’s Health shows that the court is not scared to overturn precedent. Liberals are freaked out, concerned that this puts other freedoms at risk. Neither contraception nor same-sex marriage is mentioned in the Constitution. Like abortion, both are protected under the 14th amendment — which turns out to be a shaky foundation. Plus, the court could go a step further than overturning Roe v. Wadeand actually enact a federal abortion ban.

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The Case That Doomed The Climate

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The background

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Get comfy. This is a saga. It all began when the Obama administration introduced the Clean Power Plan (CPP) which aimed to shift US energy generation towards renewables and cut greenhouse emissions from the power sector by 32% by 2030 from 2005 levels. The policy was to be administered by the Environment Protection Agency (EPA), which claimed the authority to do so through Section 111 of the Clean Air Act — a broad and kinda vague piece of legislation that leaves gaping room for interpretation.

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Unsurprisingly, oil and coal-producing states were not thrilled about the idea and challenged it in court. Once the policy came into effect, it was almost immediately put on hold by SCOTUS in a split decision led by conservative judges. This was seen by some as a crazy move by the court, given that the CPP was never implemented and had not been through any lower jurisdictions.

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When the Trump administration came into power, it tried to rescind the stayed CPP,  claiming the EPA had overstepped its statutory authority and went on to introduce far more lax environmental regulation. Following legal action from blue states, the DC Circuit invalidated both of those actions.

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When Biden came to power, the EPA indicated that they did not plan to implement the CPP but instead would introduce their own new climate regulations. That didn’t stop red states from approaching the courts again and asking them to re-rescind the Obama-era CPP (yep, that old thing that no one plans to use) and restore Trump’s regulations. Confused yet? The ultimate goal of this legal challenge is to pre-empt new policies from the current government which could force energy plants to shift towards renewable generation.

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West Virginia v. EPA

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When the case came before SCOTUS, the court ruled in a 6-3 split that EPA did not have clear congressional authorization to enact the CPP and that regulation of this nature needs to come from Congress rather than a government agency. The judges that represented the majority opinion were all nominated by Republican presidents. Likewise, all the judges that sided with the dissent were nominated by Democrats. In short, it’s pretty clear that SCOTUS has been acting politically.

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The direct impact

Although the Biden EPA never planned to use the CPP, this ruling is a huge deal. It’s hard to see how the agency can do anything that will have a meaningful impact on global warming without the court getting in the way. And Congress, the only viable alternative route to regulation, is unlikely to save the planet while in a constant state of deadlock. President Biden promised the rest of the world that he would halve US greenhouse gas emissions by 2030. West Virginia v. EPA has made that promise impossible to keep.

The legal impact

The court justified its decision using an expanded version of something called the major questions doctrine (MQD) which states that “courts should not defer to agency statutory interpretations that concern questions of ‘vast economic or political significance.’” In other words, agencies — like the EPA — should stay in their lane and not exercise their power beyond specific instructions from Congress.  

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This little-used doctrine has found its way into the spotlight during this new era of SCOTUS. It is only supposed to be used in exceptional cases, but the court has handed it out like candy as of late. For example, during the pandemic, it was used to block a vax-or-test mandate for employers with 100+ workers.

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The problem with using the MQD in this way is that it calls every regulation into question. As Bloomberg Law put it, “Nearly every nationwide agency regulation has deep economic and political significance. From rules on food safety, to workplace conditions, to rules governing union elections, to false advertising, to net neutrality, to opening gas pipelines and electric transmission lines used by the owners’ competition — the list is almost endless.”

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And very few agency regulations will be based on a clear, specific authorization from Congress. Mandates handed down to agencies are intentionally broad to allow them to respond to new and changing issues.

The fear is that majority judges can use the MQD to block just about any kind of regulation from any agency, transforming this relatively obscure little piece of text into a political weapon. The question is whether SCOTUS has the will to do so.

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The Vote Against Fair Elections

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Next up is a case that critics fear will threaten free and fair elections. Moore v. Harper is scheduled to go before the court in the coming term. What’s at stake, according to NPR, is “a legal theory that would give state legislatures unfettered authority to set the rules for federal elections” without any checks or balances.

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The background

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The case stems from a quarrel in North Carolina where the state supreme court revoked a gerrymander of the state’s congressional map that gave Republican candidates a major leg-up. In other words, Republicans had redrawn the map to maximize the number of red voters in each electoral constituency and the court said, “nice try.” Republican legislators responded by saying that neither state courts nor state constitutions had any authority over how federal elections are run.

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The legal basis

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Legislators have based these claims on constitutional provisions that give the legislature of each state the power to regulate federal elections. Or rather, as The Atlantic put it, they’ve based them on a “stark misreading” of those provisions. There is a huge body of scholarship discrediting the so-called independent-state-legislature theory and critics say that the clauses are not intended to give the legislature exclusive control of elections.

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This isn’t the first time in recent history that the theory has raised its head. It was used in legal challenges that hoped to overturn the 2020 presidential election result. SCOTUS rejected those challenges. Yet if they get behind the theory in Moore v. Harper it will add fuel to the feeling that the court’s conservative majority is interpreting the law as it suits them.

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What this means for in-house teams

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Regardless of where you stand politically, it’s important for in-house legal teams to understand the cases on the SCOTUS docket. That’s always been true but it’s even more important in an era when a single ruling can overturn decades of precedent and call into question huge swathes of legislation.

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It matters to your employees. People care about the stance their employer takes on issues like abortion and the environment. In fact, just 1 in 5 Gen Z workers say they would work for a company that didn’t share their values. Dozens of companies are now offering to cover employees’ costs if they have to travel to access an abortion. Companies with a liberal outlook could be called on to provide more support to their employees in the future. For example, if SCOTUS rolls back the right to access contraception, companies could cover travel costs for employees who have to go out of state to do so. And if SCOTUS fails to protect same-sex marriage, companies could support LGBTQ+ employees by helping them relocate to different states. It sounds outlandish but everything seems to be on the table in the new era of SCOTUS.

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It matters to your customers. Post pandemic, 42% of people have changed their consumption habits because of their stance on the environment. Customers want to support businesses that share their perspectives on things like global warming, affirmative action, and gun control — all of which have come before the court this year. In fact, as one crisis communications expert put it, “Companies are realizing there’s a risk to not engaging” on hot button topics. And as we all know, where there’s risk, there’s work for GCs.
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It matters from a compliance perspective too. If the EPA case is anything to go by, the regulatory landscape could have some serious changes in store. And if power continues to shift away from the federal government, it could create an America where there are even more vast regulatory differences from state to state *insert sarcastic woop woop*, which could impact the way your company does business.

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So keep your eyes on SCOTUS. If you’re anything like us, you’ll find it hard to look away.  

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