Non-Sequiturs: 12.01.17

GettyImages-638930668-300x257.jpg* A deep dive into the results of the July 2017 New York bar exam.

* Which lower courts are the major players?

* Should there be an independent investigation into the culture at NBC?

* Work in a male dominated office? How is #metoo changing things?

* How are law schools helping students deal with the stress of finals?


How Is There This Much News ON A FRIDAY? — See Also


SO… MIKE FLYNN FLIPPED: Kathryn collects some of the best tweets here.

IT TURNS OUT, JAMES COMEY’S INSTAGRAM GAME IS STRONG: It appears Comey made an Instagram account just to troll Donald Trump? Kathryn explains.

DAVIS POLK MATCHES CRAVATH: It was unlikely but Davis Polk was the last major New York, white-shoe firm that might legitimately have topped Cravath, but they didn’t.

WHILE WE’RE AT IT, HERE ARE ALL THE BONUSES SO FAR: All the ones we know about, in one handy chart. Read and compare.

GENERAL COUNSEL PAY IS UP: But only for men. Women are making 31% less at bonus time. I express the appropriate outrage here.

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at He will resist.

Ethics opinions have to reflect the present and future—not the past

Building the 21st-Century Law Firm



One of the most enduring purposes behind the ABA Model Rules of Professional Conduct and corresponding state ethics standards is to protect clients and the public from “overreaching, overcharging, underrepresentation and misrepresentation.” (See Ohralik v. Ohio State Bar, 1978.)

More than a century after the 1908 adoption of the association’s first set of guidelines, the ABA Canons of Professional Ethics, the clients whom ethics standards protect and the lawyers governed by them have changed drastically. Yet in substance and form, ethics standards remain stagnant—and the same lofty principles that once inspired the best in lawyers will soon render us irrelevant.


In substance, today’s legal ethics standards are so utterly out of sync with the lifestyle, social conventions and technology savvy of today’s consumers that they actually breed mistrust.

Imagine an encounter with an alien that hails from a planet where placing one’s hands around a new acquaintance’s throat is intended as a sign of respect. Yet without this background, you’d understandably feel distrustful and threatened if greeted by a stranger who has a firm vise around your neck. The same is true of ethics standards in the modern world: They require lawyers to act in a manner that is so alien in today’s society as to arouse suspicion. Consider the two following scenarios.

Case 1: Penny Prospect, a mom seeking a divorce, arrives at your office for a consult. You think the meeting went well, but you never hear back. It turns out your instincts weren’t wrong—Penny was leaning toward retaining you—until she viewed your profile on LinkedIn and saw a disclaimer that states: “This profile is attorney advertising.”

In a decade of using LinkedIn (including as recently as that morning when she updated her profile in anticipation of searching for a higher-paying job), she has never seen a disclaimer like this. She knows LinkedIn’s user agreement prohibits advertising. Doesn’t this lawyer understand terms of service?

Penny’s concerns aren’t allayed when she clicks a link to the lawyer’s blog and once again sees “This blog is attorney advertising” underneath the blog caption. Penny doesn’t bother to read the posts; she assumes that if they’re advertising, they won’t be very valuable.

Penny wonders what’s wrong with this dude. He’s so caught up in promoting himself online that he won’t have time to handle her case. Ultimately, Penny heads to LegalZoom, which doesn’t have the same advertising disclaimers, and signs up for the do-it-yourself divorce package that includes attorney review.

Case 2: Noah Newbie is a recent business school graduate seeking to incorporate an online business. After the meeting, you hand him a 15-page retainer agreement and ask him to sign it and send it back with a check.

Noah leaves the office and tosses the retainer agreement into the trash can. He doesn’t understand a word of it. Plus, he’s always paid bills by credit card. He’s not sure that he still has a checkbook.

He decides to search his lawyer’s ratings online, but there’s not a client review or testimonial to be found. Because Noah always checks ratings before making a purchase, he’s disconcerted about why he can’t find any for his lawyer: Were they so bad she paid to have them removed?

Then Noah discovers a site called Avvo Answers, where he can ask questions about incorporating a business for $39. Noah searches for a New York lawyer. When he can’t find one, he discovers that several bars, including New York, have banned lawyers from doing business on Avvo. Apparently, it’s unethical for the site to take a cut of the $39 fee you pay to talk to a lawyer.

Noah doesn’t get it. Isn’t it a common online business model for the platform providing goods or services to take a cut of the sale? That’s how Etsy and Airbnb work—heck, Uber is killing it. Noah can’t believe this rule is really intended to protect clients. It’s probably a way to force clients to have to trek to a stuffy, old lawyer’s office and fork over $1,000.

It looks like his mentor, who heads a successful startup, was right after all: Noah is going to have to start his corporation at Rocket Lawyer by himself. Noah sighs, thinking it was easier to find his fiancée online through a dating site than it is to hire a lawyer.


These aren’t fantasy scenarios; they are based on actual ethics opinions. New York County Lawyers Association Formal Opinion 748 (2015) requires disclaimers in LinkedIn profiles. State Bar of California Formal Opinion 2016-196 treats a blog as advertising that’s subject to advertising rules if the attorney makes known their availability for service. And New York State Bar Association Ethics Opinion 1132 (2017) finds Avvo Answers and similar sites to constitute unethical fee splitting, as did a 2016 advisory opinion from the South Carolina Bar.

As these examples bear out, the parade of horribles that regulators envision—fee splitting with nonlawyers injecting their interest into the attorney-client relationship, testimonials and reviews that might dupe clients into hiring an unqualified lawyer, making objective and useful information online available through a LinkedIn profile or a blog without prominently labeling it as advertising (I’m stumped to figure out what kind of harm that could ever cause)—doesn’t intimidate today’s clients at all.

Most of today’s clients have seamlessly, thoroughly integrated social media and “sharing-economy” platforms, as well as online payments and content-based marketing, as part of their daily lives. They’ve acclimated to the cultures of each online universe they inhabit and grown adept at distinguishing between causal informational websites and biographical profiles, and chatty personal exchanges and paid advertising. So when lawyers can’t conform their conduct to these mores, they’re first viewed with suspicion or annoyance and, ultimately, ignored.

Read more …

Carolyn Elefant is an energy and eminent domain attorney based in Washington, D.C. She says blogging at MyShingle “has given me a bird’s-eye view of the changes that have been roaring through the legal profession and an opportunity to chronicle and speak on these trends.”

This article was published in the December 2017 issue of the

ABA Journal with the title “Change the Rules! Ethics opinions have to reflect the present and future—not the past.”

Chicago special prosecutor’s career nearly came to a premature end

Magazine Feature


Photo of Patricia Brown Holmes by Wayne Slezak

Patricia Brown Holmes was on top of the world. It was 1999, and she was living a dream that most attorneys never come close to experiencing. Less than two years prior, Holmes, at the age of 36, had become the youngest African-American woman to serve as an associate judge on the Circuit Court of Cook County. “Being a judge is considered the top of the profession,” she says. “I wanted to be at the top of the profession. I wanted that ring.”

Then she was told she might have only six months to live.

Diagnosed with lymphoma, her prognosis was grave. She could have drawn on her training as a lawyer to use what was left of her time to get her affairs in order. Instead, she drew on her other lawyerly skills and decided to fight.

“I tend to be tenacious and determined,” Holmes explains when recalling her death-defying recovery. “I’m the person you want to have around in an emergency because I’m not paralyzed. I tend to assess the circumstances quickly and accurately and then take appropriate action. But I’m constantly reassessing, listening and looking for new clues that may require a change in direction. I think those skills helped me survive cancer. I didn’t accept the prognosis. I assessed the situation and found ways to fight.”

Holmes credits her Type A personality and an experimental white blood-cell enhancer with saving her life. Since that challenge, she has served as president of the Chicago Bar Association and helped found the law firm of Riley Safer Holmes & Cancila.

Then, in July 2016, Holmes was appointed special prosecutor to investigate whether Chicago police officers involved with the highly charged 2014 fatal shooting of Laquan McDonald lied about another officer’s misconduct.

Colleagues say it’s no surprise that she got such an important and high-profile job. “She has unfailing judgment,” says Ronald Safer, who worked with Holmes at the U.S. attorney’s office and has been her law partner since 2005, first at Schiff Hardin and then at Riley Safer. Holmes is “brilliant,” adds Robert Riley, another partner, “but she also has tremendous common sense. … Her voice is measured and insightful.”

Some of those directly involved in the McDonald case concur. Locke Bowman, a civil rights lawyer and professor at Northwestern Pritzker School of Law who petitioned for a special prosecutor in the case, says he was pleased with Holmes’ appointment. “She gets the issues and she’s unafraid to do the right thing. Her performance in office has confirmed our confidence in her.”

Although Holmes herself cannot comment on the McDonald matter, she says her team is moving the investigation forward “as expeditiously as possible, giving it the time, attention and care it deserves.”

“I can say I am approaching this case not as an issue of public policy but as a set of specific facts that need to be discovered, examined and carefully weighed,” she says.

This past summer, Holmes secured indictments for conspiracy, official misconduct and obstruction of justice against three police officers and successfully moved to remove the judge initially assigned to the case, whom some considered pro-police in similar excessive-force cases.

“The indictment makes clear that it is unacceptable to obey an unofficial code of silence,” Holmes said at the time. In late August, she added that the grand jury was looking at more individuals and weighing further indictments.

It’s not surprising, but her latest job has some serious detractors. “These charges are, in our minds, baseless. Our officers are being made the scapegoats,” said Kevin Graham, president of the Fraternal Order of Police, in a statement after the indictment. “How the special prosecutor can construe a ‘code of silence’ theory defies belief. How can officers be indicted based upon which witnesses they spoke to and which ones they didn’t?”


Holmes was one of four candidates recommended for the special prosecutor position after a request by community groups and a member of McDonald’s family. That Holmes is getting paid comparatively little for her work on the case is consistent with her values, colleagues say. When asked how much she’s getting, Holmes declines to comment, except to say it is less than what she usually charges.

“There’s no upside for her,” explains Zaldwaynaka “Z” Scott, a Foley & Lardner partner who worked with Holmes at the U.S. attorney’s office in Chicago. “She’s working at the lowest rate. But this case needed someone who could look at the evidence and work to be fair and honest and not just driven by emotion.”

It’s not the first time Holmes has been charged with leading a sensitive investigation. In 2011, she was appointed trustee of Burr Oak Cemetery, a historic African-American graveyard in the Chicago suburb of Alsip that declared bankruptcy after a scandal involving a grave desecration and reselling scheme.

It was a grim Halloween story: In 2009, the cemetery, the last resting place of jazz great Dinah Washington and civil rights martyr Emmett Till, was found to be reselling burial plots and either interring caskets above those already buried or removing remains to put new bodies in the plots. Prosecutors described a grisly scene where 1,500 bones of 29 people were strewn on cemetery grounds. A cemetery manager and three employees were convicted in the scandal.

But it was more than a job for Holmes. Her father’s grave marker and remains were likely among those removed, Holmes told the Daily Southtown, a suburban Chicago newspaper, when reinterment ceremonies were held in May 2016.

She told the newspaper she went to visit her father’s final resting place in Burr Oak, but was unable to find it.

“You figure, well, it has been a couple years—maybe things change. Maybe it looks different,” Holmes said then. She ultimately convinced herself that she had forgotten where her father, Andrew Brown, was buried. Then she heard about the grave-reselling scandal.

“I was like ‘Oh, my God, I didn’t just forget. I was right!”

Read more …


Because of a reporting error, “You Only Live Once,” December, misstated that Patricia Brown Holmes and Zaldwaynaka “Z” Scott worked together on the case of U.S. v. Mohammad. They instead worked together on U.S. v. Emenogha, a multidefendant drug and money-structuring case.

Erin Gordon, a former lawyer, is a legal journalist based in San Francisco.

This article was published in the December 2017 issue of the

ABA Journal with the title “You Only Live Once: Chicago attorney and special prosecutor Patricia Holmes has done it all in her career—one that nearly came to a premature end.”

In Non-Bonus News — See Also

See-Also-300x74.pngFIRST, LET’S START WITH A BONUS STORY: Apparently if your firm stupidly followed to $180K, there’s a chance it’ll take that out of your bonuses. Here’s the miserly quote.

THERE’S NOTHING AS NON-NEWS AS A KARDASHIAN STORY: Kim Kardashian did something. Or cares about something. Or something. Read some Kardashian news here.

I ONCE DID AN INTERVIEW WITH JOHN GIRSHAM WHERE HE EXPLAINED THAT HE THOUGHT THERE WAS A PRINCETON LAW SCHOOL: Then wrote a book where the guy went to Princeton Law School, then was informed of his error, then decided to leave it since it was fiction anyway. Point is, I agree that Princeton Law School would rank in the top-20 of any law school ranking based on “reputation,” because that’s how people think. Mark Herrmann explains.

YOU ARE ALL COMPLICIT: Well, at least you are all looking up what the word means. Complicit is the word of the year.

IN ACTUALLY IMPORTANT NEWS: This fight over the Consumer Financial Protection Board is real, and really interesting, and would be “fun” if it wasn’t fundamentally about Trump killing off an entire organization so that his business friends can more easily defraud the American people. Joe Patrice explains.

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at He will resist.

LinkedIn Guidelines For Lawyers

As a law firm, there are a number of avenues which can help your firm build credibility online. From starting your own blog to answering questions on lawyer help forums. A platform that many businesses don’t seem to tap into is LinkedIn and we’re going to talk about it today.

Most people mistake LinkedIn as a job search platform or a social network of sorts. But, what you might not know is that there are businesses which use this platform as a recurring source of qualified leads.


Studies have shown in the past that LinkedIn is a very effective lead generator. Here’s how you can generate leads for your law firm using LinkedIn:

1)      Create a LinkedIn Company Page

There are currently a few million company pages on LinkedIn. Create a business page for your company with content that showcases your expertise. Things you should include on it are:

  • Company Description – including the brand, services you provide, your achievements and affiliations.
  • Names of Clients, especially big ones.
  • Client Testimonials that will create social proof.
  • Images, infographics, videos
  • Regular posts with keyword-rich content

2)      Interact with the LinkedIn community

The more content you create and share to help, intrigue and inspire, the better it is for you. LinkedIn is a repository of professionals, executives, and prospective clients. Engaging them would mean you’re nurturing your network. Focus on the value you can provide, as that’s the sole driver of great content marketing.

Word about your authority spreads really quick on a platform like LinkedIn and you could find yourself getting referrals or being introduced to a prospect before you know it. Especially if you’re connected with well-networked people or influencers.

You don’t need to create all content from scratch. You can share appropriate industry updates, questions that’ll engage your followers in a conversation. Community participation on relevant topics by your firm or you also helps. Links to white papers, webinars, case studies etc. leading back to your website are also appropriate for gaining following.

3)      LinkedIn Groups

Join active LinkedIn groups with a substantial following in your area of expertise. Be a useful contributor to the discussion and also make a habit of sharing ideas/news and being helpful.

Some do’s and don’ts that you should keep in mind:

  • Don’t make every interaction about marketing your legal services.
  • Short and timely comments are better than long but occasional ones.
  • Any value that you can provide as a knowledge expert in your field or any resources you share will position you as helpful and the go-to person.

4)      Local SEO

Most legal businesses have a certain geographic area of operation and cater to the local market. This makes local search engine optimization important.

On your LinkedIn profile and posts include local keywords and links – like local community events, local client testimonials. A public LinkedIn profile also ensures visibility in search engines.

5)      LinkedIn Leadgen forms

You can also share sponsored content like a research study report you funded. LinkedIn has launched Leadgen Forms on smartphones, which effortlessly pulls data from prospective leads’ LinkedIn profile. Make these forms a part of your content.

With these forms and with LinkedIn’s accurate profile data you can collect quality leads that are sure to give you a higher conversion rate.

LinkedIn’s networking platform is used by a variety of people from executives of Fortune 500 companies, business owners to everyday people. There are unlimited opportunities that can emerge out of LinkedIn. Using the techniques mentioned above will help you create credibility and use this platform as a source of great leads.

Edward Kundahl, Ph.D., M.B.A.

Ed can be reached at (or visit his websites)

HLS Alum Pat Miles On Mid-Size Legal Markets, Public Service, And His Candidacy For Michigan Attorney General


Patrick Miles

“I picked up the pen like Hamilton / Street analyst, now I write words that try to channel ’em / No political power, just lyrical power.”Nas

Earlier this year, Patrick Miles, a former U.S. Attorney for the Western District of Michigan, joined Barnes & Thornburg LLP. With the addition of Miles, Barnes & Thornburg becomes the first major law firm with three former U.S. attorneys who are African-American. Michael Battle and Roscoe Howard are the other two former U.S. attorneys at the firm.

Miles is a third-generation Grand Rapids, Michigan, resident. After graduating from Harvard Law School in 1991, he returned to Grand Rapids to begin his legal career in the private sector.

In 2010, Miles ran for Congress, losing to the Republican nominee Justin Amash. In 2012, he was nominated and confirmed for the U.S. Attorney for the Western District of Michigan based in Grand Rapids. He tendered his resignation on January 30, the day Trump was sworn into office. This May, Miles joined Barnes & Thornburg. On September 28, he announced his candidacy for Michigan Attorney General.

This week, Pat Miles was generous enough to share his time and advice with our ATL audience. Having clerked in Grand Rapids for a couple of summers, I really enjoyed our shared passion and pride for the city. As a young attorney, I found his career and civic advice to be invaluable.

Without further ado, here is a (lightly edited and condensed) write-up of our conversation:

Renwei Chung (RC): You mentioned that most of your HLS classmates chose larger legal markets. Why did you choose to launch your professional career in a smaller legal market like Grand Rapids?

Pat Miles (PM): First, in law firm practice one needs an expertise and/or a client base to be a successful partner. Being from Grand Rapids was an advantage to do the latter. Second, I like the culture and life style of a medium size city and bar association. Third, I wanted to help Grand Rapids law firms become more diverse and inclusive.

RC: After 21 years in private practice, and almost five years as the U.S. Attorney General for the Western District of Michigan, what career advice do you have for current law students and young attorneys?

PM: Learn as much as you can from more senior attorneys, particularly the ones who are good writers. Also, follow your instincts and do the type of work you enjoy, where you enjoy doing it, rather than chasing a large paycheck.

RC: What drew you to public service?

PM: My parents instilled in me a sense of community service and giving back. I’m also drawn by the opportunity to help others and solve problems on a wide scale.

RC: On September 28, you announced your campaign for Michigan Attorney General. What motivated you to throw your hat in the ring?

PM: No job is better preparation for state attorney general than serving as a presidentially appointed U.S. Attorney. I thoroughly enjoyed being U.S. Attorney for the Western District of Michigan, particularly serving justice, protecting the public, defending taxpayers, and bringing law enforcement and communities together.

RC: Why should young people get involved in our civil service or political system?

PM: Every citizen should be involved in the political system through voting. Beyond that, working in the public sector is very rewarding. Working for the common good is very satisfying professionally.

RC: It was great chatting with you. Is there anything else you would like to share with our audience?

PM: As attorneys, we chose to serve justice and serve others. That is a calling we can be proud of regardless of one’s practice or where one practices law.

On behalf of everyone here at Above the Law, I would like to thank Pat Miles for taking the time to share his story with our audience. We wish him continued success in his career.

Renwei Chung is the Diversity Columnist at Above the Law. You can contact Renwei by email at, follow him on Twitter (@renweichung), or connect with him on LinkedIn